New York Miscellaneous Reports

Unpublished

KIRAMA v. NEW YORK HOSP., 109859/01 (12-05-2006) 2006 NY
Slip Op 52356(U) Aicha Kirama, Plaintiff, v. The New York
Hospital, Ioannis Zervoudakis, Susan Loeb-Zeitlin, Julianne
Dunne, Monica Prasad, “John” Fong, “John” Feroz, “John”
Slomovitz, “John” Dupont, “John” Gershonathiah, “John”
Floreo, “John” Finkelstein, “John” Huang, (first names being
fictitious and unknown but said individuals meant to be the
anesthesiologist, and house staff members who treated the
plaintiff), Defendants. 109859/01. Supreme Court of the
State of New York, New York County. Decided on December 5,
2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] STANLEY L. SKLAR, J.

Plaintiff moves both for a protective order pursuant to
CPLR Section 3101, requiring defendants to take the
deposition of the plaintiff, residing in Morocco, by video
conferencing and also for an order extending plaintiff’s
time to file a Note of Issue. Defendants cross move for an
order requiring plaintiff to appear in New York County for
deposition as well as for 1) an independent medical
examination under pain of dismissal of the action for
non-compliance and 2) requiring plaintiff to post $500
security for costs. Defendants argue, in part, that the
Court does not have the power to order a video conference
and does not have the power to order such video conference
to be held outside the state.

Plaintiff alleges negligence while proving prenatal care
and during her admission to New York Hospital between
November 13, 1998 and December 29, 1998 for the delivery of
her fifth child, by cesarean section. She claims that the
cesarean section was improperly performed causing a
perforated uterus and an infection which made her gravely
ill, and resulted in pain and suffering, scarring,
adhesions and an otherwise unnecessary hysterectomy. This
action was commenced almost 2 and one half years later, on
or about May 14, 2001. Answers were served by September,
2001, with discovery demands. Some of the persons listed in
the caption have never been served. Over a year later, on
about November 11, 2002, plaintiff served identical bills
of particulars on the appearing defendants and responses to
defendants’ discovery demands.

Procedural Background

A preliminary conference was held on January 30, 2003, at
which an order was signed requiring plaintiff to appear for
deposition on June 9, 2003, as well as provide
authorizations for certain prior and subsequent treating
records within thirty days. In March 2003, defendants’
counsel requested, by letter, the authorizations, including
the records of the doctor or facility that prescribed
insulin to the plaintiff on August 25, 1998, as noted in
the New York Hospital chart. A total of ten compliance
conferences have been held since the preliminary
conference. Plaintiff’s counsel indicated an inability to
contact plaintiff and initially failed to provide any
authorizations or medical records. At some point in time it
appears that plaintiff returned to Morocco. At the January
29,2004 compliance conference plaintiff’s counsel was
directed to provide the plaintiff’s prior and subsequent
medical records from Morocco. It may be noted that the
orders at the preliminary conference and the compliance
conferences were based upon agreements of the parties that
were then “so ordered” by the Court.

In August, 2004, plaintiff’s counsel sent defense counsel a
one page statement from Dr. Moussa Ezzahraoni, evidently an
OB-GYN who treated the plaintiff in Morocco. Plaintiff
provided authorizations for the records of Dr. Ezzahroani
and Dr. Aicha Elhardoui, but counsel for defendants have
not be successful in obtaining those records, and have
asked plaintiff’s counsel on several occasions to produce
such records.

At the request of the parties, I sent a letter on September
1, 2004 to the Moroccan Consulate in New York requesting a
visa to allow plaintiff to travel to New York for her
deposition and stating that plaintiff must provide copies
of all of her Moroccan medical records no later than 45
days before her arrival in New York. Plaintiff’s counsel
wrote to the court advising that the letter to the Moroccan
Consulate had been sent to the wrong address, and upon
agreement I sent a similar letter to the American Consulate
in Casablanca, Morocco.

At a compliance conference on March 17,2005, I extended
plaintiff’s time to serve a Note of Issue through July 15,
2005. On March 29, 2005, defendants served a notice
pursuant to Rule 3216 CPLR to resume prosecution of the
action and file a Note of Issue within 90 days. Counsel
agreed to extend that 90 day deadline to July 15. On or
about July 8, 2005, plaintiff’s counsel served an order to
show cause seeking an extension of the July 15 deadline.
Defendants served a cross motion to dismiss pursuant to
CPLR Section 3126 which has been adjourned until the
submission of this motion.

At a compliance conference on October 27, 2005, plaintiff’s
counsel indicated that they had lost contact with the
plaintiff and sought leave to withdraw. I directed that the
application to withdraw include a notice to the client to
be published in the national Moroccan newspaper “Le Matin”
that her case would be dismissed if she didn’t contact her
counsel by February 4, 2006. (Plaintiff’s motion, Exhibit
“D”). Plaintiff apparently read the advertisement and her
brother appeared with counsel at the conference on February
4, 2006. Mr. Stephen Kirama said he was helping his sister
in her efforts to secure a temporary visa. Plaintiff and
her counsel have been unsuccessful in their efforts to
secure a visa and are unable to state when a visa may be
granted (Moving affirmation, § 21).

DISCUSSION

CPLR Section 3110 (1) declares that a deposition will
ordinarily be held in the county where the action is
pending. However, plaintiff argues that when the party to
be deposed demonstrates that being deposed in that county
would constitute a hardship, the deposition may be held
elsewhere. Plaintiff cites Hoffman v Krauss, 260 AD2d 435
(2nd Dept, 1999), in which the defendant was a resident of
Hungary, over 70 years old, and in failing health. In
Zilken v Leader, 23 AD2d 645 (1st Dept, 1965), Special Term
granted the motion of plaintiff, a resident of West
Germany, to have his deposition taken on written questions
and denied defendant’s application to have him deposed on
oral questions in New York County, without prejudiced to
renewal if defendants were not satisfied with the facts
adduced on such examination. The First Department modified
by adding that if plaintiff came to the United States
before trial or for the trial, he must promptly notify
defendants of his arrival and submit to an oral examination
within a reasonable time, but not later than five days
before trial. Plaintiff also relies on a First Department
decision for the proposition that when the deponent is a
non-resident of New York, hardship to the deponent permits
an order allowing the deposition to be held by video
conference. Thus, in Rogovin v Rogovin, 3 AD3d 353 (1st
Dept, 2004), a video conference ebt was permitted where the
defendant-deponent was the sole caregiver for her ailing
nonagenarian mother and had a special needs 10 year old
daughter.

Defendants cite cases holding that no hardship exists
justifying a deposition outside of New York State. Those
cases are all readily distinguishable because clearly no
hardship circumstances existed. For example, in Farrakhan v
N.Y.P. Holdings, 226 AD2d 133 (1st Dept, 1996) the court
held that plaintiff frequently traveled to New York so that
it could not be concluded that his safety would be
jeopardized by a deposition here which would not involve
the type of public exposure and risk which he assumed at
his highly publicized appearances. In Rodriguez v Infinity
Insurance Co., 283 AD2d 970 (4th Dept, 2001), the court
held that conclusory allegations of hardship did not
establish that travel to New York would constitute a
hardship.

By way of contrast, plaintiff has the extreme hardship that
she cannot legally travel to New York because she cannot
secure a visa, despite the efforts of counsel, plaintiff
and her relatives, and even the Court. Defendants’ argument
that her situation does not present a hardship because she
voluntarily returned to Morocco at some time after her
release from the defendant hospital is without merit.
Plaintiff’s counsel’s assertion in his reply affirmation
that she left because her visa was soon to expire misses
the point How the hardship was created is irrelevant here
since there is no indication, for example, that she left
the United States to return to her home in Morocco for the
purpose of evading being deposed in New York County or New
York State.

Defendants’ remaining argument is that the legislative
history, and the plain language of CPLR Section 3113(d)
restricts video teleconferencing to cases in which both
sides stipulate to the procedure, is unavailing. Granted
the legislative history provided indicates that the earlier
proposed version of the statute would have permitted video
teleconferenced depositions on stipulation and upon court
order, whereas the later version, which became law, only
speaks to stipulations. Nonetheless, the First Department
has spoken, and its holding is binding on this court. The
Rogovin (supra) Court not only found a hardship to exist
but it affirmed the directing of a deposition by video
conferencing even though it must be assumed that there was
no stipulation to do so (if there were a stipulation, there
would not have been an appeal). Defendants’ claim of
prejudice because the deposition would be held by video
conferencing is also unavailing. Precisely those same make
weight generalized and conclusory claims of prejudice would
have been present in Rogovin, supra, but did not deter the
ordering of the out-of-state deposition.

The branch of defendants’ motion seeking security for costs
is granted. Although opposed, no specific reason is given
to justify the opposition. Accordingly, plaintiff shall
post security for costs in the sum of $500.

The Court defers consideration of the issue of an
independent medical examination until a conference with
lawyers from both sides who are fully familiar with the
case and the chart of plaintiff’s stay at New York
Hospital. The claim is of a perforation, and an infection,
which resulted in a hysterectomy and an otherwise
unnecessarily prolonged hospital stay. Full information
with respect to those events is in the chart. Defendants do
not state why they want a physical examination or of what
it would consist. Accordingly the request for an order
directing an independent medical examination is denied
without prejudice to renewal after said conference and upon
papers that address the issues raised in this paragraph.

Settle order.