April 1, 1959.
Julian Buchbinder, New York City, for plaintiff.
Kirlin, Campbell Keating, New York City, for defendant.
Plaintiff, a 70 year old resident of California, moves to vacate defendant's notice to take her oral deposition in New York. The papers in support of the motion consist merely of an affidavit by plaintiff's attorney to the effect that she is unable to travel to New York because she is "infirmed, weak and disabled", and of an unsworn "certification" by her doctor to the effect that she is unable to make a trip of any kind because of her impaired physical condition. These papers are patently insufficient to support the relief requested. However, rather than risk substantial injury to the plaintiff merely because insufficient papers have been submitted, I will adopt the following procedure:
The decision on the motion to vacate will be held in abeyance. In the meantime, in accordance with the suggestion of defendant, plaintiff is ordered to submit herself to a physical examination by defendant's physicians in Los Angeles, California, at a time agreed upon by the parties but in no event more than 30 days subsequent to the publication of notice of entry of this order in the New York Law Journal. If defendant is not satisfied that plaintiff is unable to travel to New York it may submit the findings of its physicians, in affidavit form, to the Court. At the same time plaintiff may submit, in affidavit form, the findings of her physician. If the Court then determines that the plaintiff is able to travel to New York, the motion will be denied in its entirety. If, on the other hand, the Court determines that plaintiff is not so able to travel, further information will be submitted to aid the Court in determining whether the deposition will be had on written interrogatories or, if an oral deposition is deemed necessary, how the expenses of taking the oral deposition in Los Angeles are to be defrayed.
It is so ordered.