Gehen v. Consolidated Rail Corp.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court [1027] did not abuse its discretion in ordering defendants to “show a good faith effort” to produce four former employees for depositions in Erie County (see, MS Partnership v Wal-Mart Stores, 273 AD2d 858, 858-859). The court erred, however, in further ordering defendants to pay plaintiffs counsel’s costs and plaintiffs expenses in procuring the testimony. Any expenses incurred by a party in connection with discovery should be paid by the party incurring the expenses and may be taxed as disbursements by the party who ultimately prevails (see, Morgan v Dell Publ. Co., 185 AD2d 876, 878). In the interest of judicial economy, we treat this motion to compel under CPLR 3124 as a motion for permission to order the examination of out-of-State witnesses under CPLR 3113 (a) (2) and grant that relief together with reasonable expenses, excluding attorney’s fees to be recovered as taxable disbursements at the time of entry of the final judgment in the event that plaintiff prevails herein. We therefore modify the order by vacating the third and fourth ordering paragraphs and granting plaintiff permission to order the examination of out-of-State witnesses under CPLR 3113 (a) (2) together with reasonable expenses, excluding attorney’s fees, to be recoverable as taxable disbursements at the time of entry of the final judgment in the event that plaintiff prevails herein. (Appeals from Order of Supreme Court, Erie County, Whelan, J. — Discovery.) Present — Hayes, J. P., Scudder, Burns, Gorski and Lawton, JJ.