Opinion
12181403.
Decided January 11, 2005.
Upon the foregoing papers, it is ordered that this motion by plaintiffs for an order pursuant to CPLR 3103(a) to allow plaintiff Anna Schlang to be deposed in Vienna, Austria and to complete the deposition of plaintiff Norbert Schlang in Vienna, is denied.
This is a medical malpractice action in which Mrs. Schlang alleges that she suffered nerve damage and permanent scarring as a result of defendant Dr. Aston's negligence during a plastic surgery procedure at defendant Manhattan Eye, Ear and Throat Hospital. Plaintiff claims that Dr. Aston improperly inserted a silicone implant into her chin and that the implant became infected and had to be removed. Mrs. Schlang and her husband, Norbert, who sues for loss of services, reside in Vienna, Austria and are citizens of that country. Plaintiffs claim that Mrs. Schlang is unable to travel to New York because of a serious and permanent medical condition that is unrelated to her claims in this medical malpractice action. Thus they seek to have her deposition taken in Vienna on the basis of undue hardship and to complete there Mr. Schlang's deposition which was begun in New York in September 2004.
Plaintiffs' motion is denied. In support of this motion, plaintiffs first submitted a letter dated June 22, 2004 from Dr. Martin Endler, the physician caring for Mrs. Schlang in Vienna. Dr. Endler stated that plaintiff suffers recurrent ischiatic and lower back pain caused by a severe osteoporosis and multiple discusprotrusions, that the condition is irreversible, that an MRT [sic] showed a spontaneous fracture of L3, and that he has advised her against any form of physical activity and prolonged travel as it may cause deterioration. Defendant opposed the motion, arguing that plaintiff had failed to establish undue hardship in that the motion had been supported only by a letter and not an affidavit, and that in the summer of 2004, plaintiff, as indicated by her husband in his deposition held in September 2004, had managed to travel to their summer home in Barcelona, Spain. I permitted plaintiff to make a supplemental submission in support of her claim that traveling to New York for her deposition would result in undue hardship.
Plaintiffs submitted two additional letters from Dr. Endler. His letter dated November 24, 2004 indicates that he had reluctantly agreed that plaintiff could travel from Vienna to Menorca on a direct flight under two hours, but that he still advises against transcontinental travel and that "[a]ny international carrier would demand a medical certificate to transport a person in [plaintiff's] condition and such could not be issued". Dr. Endler does not explain why such a medical certificate would be required. His letter dated December 15, 2004 states that "[a]ny strain for a prolonged period can lead to more vertebral fractures causing pain and neurological consequences. The documentations were provided to my office and the condition is not reversible." Dr. Endler does not include any documentation or medical records along with his letters.
As noted, plaintiffs have submitted only letters from a physician, and thus there is no sworn submission by the treating physician. Furthermore, plaintiff's physician has not included any medical records to support his conclusions. Additionally, at argument of this motion, I inquired of plaintiffs' counsel as to whether Mrs. Schlang was going to testify at the trial of this action, and counsel could not answer that question. Arguably, if Dr. Endler is correct about plaintiff's condition and that it is irreversible, then the same condition that prevents her appearing for a deposition in New York would prevent her from attending the trial and testifying. Yet, plaintiff's counsel cannot say that plaintiff will not testify at trial, and has thus far not made any arrangements to preserve plaintiff's testimony by videotaped deposition.
As was noted by the First Department in Farrakhan v. N.Y.P. Holdings ( 226 AD2d 133), "[a]s a general rule, a non-resident plaintiff who has invoked the jurisdiction of New York State by bringing suit in its courts must stand ready to be deposed in New York unless it is shown that undue hardship would result (citations omitted)."( 226 AD2d p. 135-136).
Based upon the foregoing, I conclude that plaintiffs have not demonstrated that a protective order should be granted and that defense counsel should be put to the inconvenience of traveling to Vienna to depose Mrs. Schlang and to conclude the deposition of Mr. Schlang. However, as an accommodation to plaintiffs, I will permit the depositions (and the IME) to be held in abeyance until prior to trial to the following extent:
Plaintiffs are directed to appear for depositions and Mrs. Schlang is to submit to an IME at least 30 days prior to trial. This will mean that plaintiffs will have to arrive in New York at least 30 days prior to jury selection, but it will also eliminate an extra trip to New York for plaintiffs that would ordinarily be required for their depositions.