de Velutini v. Vicente Velutini U. , 542 N.Y.S.2d 574 ( 1989 )

Order, Supreme Court, New York County (Andrew Tyler, J.), entered September 30, 1988, which granted defendant-respondent Vicente Velutini U.’s cross motion for a protective order and which granted plaintiff-appellant’s motion for judgment against respondent unless discovery was completed within 45 days, unanimously modified, on the law and the facts and in the exercise of discretion, to grant plaintiff’s motion to compel respondent to appear for a deposition in New York on August 1, 1989, at 10:00 a.m., at ex parte Motion Part, Supreme Court, 60 Centre Street, New York City, and to deny respondent’s cross motion for a protective order, and to stay determination of appellant’s motion for summary judgment until 30 days after receipt of the deposition transcripts, and otherwise affirmed, with costs.

Plaintiff-appellant seeks to recover damages from defendant-respondent Vicente Velutini U., her late husband’s nephew, for alleged fraud and conversion of securities bequeathed to her by her husband. Respondent is a citizen of the Republic of Venezuela and a resident of Caracas. He has opposed appellant’s efforts to take his deposition in New York City. Respondent has submitted a medical certificate from his Venezuelan psychiatrist stating that he is currently under the doctor’s care and receiving medication for major depression, which led respondent to attempt suicide twice in 1987. However, appellant has submitted evidence establishing that respondent leads an active social life in Caracas. Moreover, the medical certificate, which was sworn to on October 20, 1987, does not state that respondent is presently unable to attend a deposition in New York. Consequently, respondent’s motion for a protective order should be denied and appellant’s motion to compel his deposition testimony in New York granted. Concur —Sullivan, J. P., Kassal, Rosenberger, Wallach and Rubin, JJ.