Mount Vernon Fire Insurance v. Lundy

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify its insured, Levi Timm, in an underlying negligence action commenced by Chadwick Lundy, the defendants Chadwick Lundy and Cipriana Lundy appeal, (1) as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vinik, J.), dated February 25, 1994, as granted the plaintiff’s motion to compel Chadwick Lundy to be deposed on April 28, 1994, in the Supreme Court, Kings County, and (2) from an order of the same court dated September 19, 1994, which, upon the failure of Chadwick Lundy to appear at the deposition scheduled for April 28, 1994, granted the plaintiff’s motion to reschedule the deposition, and denied the appellants’ cross motion to vacate the prior order and/or to permit a limited deposition on written questions. Ordered that the order dated February 25, 1994, is reversed insofar as appealed from, without costs or disbursements, and the plaintiff’s motion is denied; and it is further, Ordered that the order dated September 19, 1994, is modified by (1) deleting the provision thereof which granted the plaintiff’s motion to reschedule the deposition of Chadwick Lundy and substituting therefor a provision denying the motion, and (2) deleting the provision thereof which denied the branch of the appellants’ cross motion which was to direct the plaintiff to conduct a limited deposition of Chadwick Lundy on written questions and substituting therefor a provision granting that branch of the cross motion; as so modified the order dated September 19, 1994, is affirmed, without costs or disbursements. Ample notice of six weeks was provided to the plaintiff Mount Vernon Fire Insurance Company (hereinafter Mount Vernon) that on August 20, 1993, the appellant Chadwick Lundy (hereinafter Lundy) would be in New York for the taking of a deposition in the underlying personal injury action and would be available to Mount Vernon’s counsel in the declaratory judgment action for questioning. Counsel did not [575] avail itself of that opportunity. A short time later, counsel moved to compel Lundy to travel to New York a second time for the purpose of being deposed. Even though Mount Vernon, through its counsel, was requesting the deposition and was in the superior economic position, it did not offer to defray nonresident Lundy’s travel expenses. The court erred in granting Mount Vernon’s motion. Under the circumstances, it should have granted the branch of appellants’ cross motion permitting Lundy’s deposition to be conducted out-of-State upon written questions (CPLR 3103 [a]; 3108). Thompson, Santucci, Altman and Hart, JJ., concur.