Gryphon Domestic VI, LLC v. App International Finance Co. B.V.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered March 11, 2008, which, insofar as appealed from, (1) vacated the parts of the order of J.H.O. Beverly Cohen, dated January 16, 2008, directing the depositions of defendants/ judgment debtors PT. Indah Kiat Pulp & Paper Corp. and Indah Kiat International Finance Co. B.V (the Indah Kiat defendants) to be held in New York and (2) directed those depositions to take place in Indonesia, Singapore, or the Far East, unanimously modified, on the facts and in the exercise of discretion, to delete Indonesia as a potential deposition location, to change “Far East” to “mutually convenient location in Asia,” to direct defendants to pay plaintiffs-appellants’ expenses to attend and conduct the Indah Kiat defendants’ depositions in Singapore or elsewhere in Asia, and to direct PT. Indah Kiat’s deposition to take place within 30 days of entry of this order, and otherwise affirmed, without costs. While “[t]he preferred practice, except in cases where hardship is shown to exist, is to proceed with examinations here” (Kahn v Rodman, 91 AD2d 910, 911 [1983]), a preferred practice is not the same as an inflexible rule. Under the circumstances of this case, the motion court did not improvidently exercise its discretion in declining to direct the depositions of the Indah Kiat defendants to take place in New York. However, as defendants concede, the court should not have offered Indonesia as a potential deposition locale; in light of an Indonesian court order, it might be illegal for plaintiffs to take defendants’ depositions there (see Gryphon Dom. VI, LLC v APP Intl. Fin. Co., 220 B.V., 41 AD3d 25, 28, 36 [2007]). We incorporate into our order defendants’ offer to pay plaintiffs’ expenses and suggestion that the location of the deposition be mutually convenient. Since J.H.O. Cohen directed that the deposition of PT. Indah Kiat Pulp & Paper Corp. take place on or before March 31, 2008, but that Indah Kiat International Finance Co. B.V’s deposition take place at a date to be determined by her, our order sets a date only for the former deposition. We note that this is an opportunity for defendants to show their good faith. If, notwithstanding the instant favorable order, they place roadblocks in the way of the Indah Kiat defendants’ depositions, and if a dispute should arise in the future as to the location of another defendant’s deposition, we may exercise our discretion differently. Concur—Lippman, EJ., Mazzarelli, Williams, Sweeny and Acosta, JJ.