Banco de America v. De Somoza

88 A.D.2d 843, 451 N.Y.S.2d 152, 1982 N.Y. App. Div. LEXIS 17158

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1982
• Status: Published

Opinion

Order, Supreme Court, New York County (Greenfield, J.), entered February 19, 1982 which, inter alia, granted plaintiff’s motion to take the deposition of defendant and three nonparty witnesses and denied defendant’s cross motion for a protective order quashing and vacating the subpoenas and notices of deposition, unanimously modified, on the law, the facts and in the exercise of discretion by providing at the end of the third decretal paragraph of said order that plaintiff shall not serve defendant with process at said deposition or on her way to or upon return therefrom; and by adding in the sixth decretal paragraph of said order after the words “at 10:00 o’clock in the forenoon” the following: “or provide counsel with their best information as to an address of Mrs. Blumenberg at which she may be served” and; as thus modified, the order is affirmed, without costs and without disbursements. Defendant conténded below that plaintiff could re-serve her at the deposition, which would render academic her jurisdictional objection. Plaintiff, upon this appeal, affirms its willingness to refrain from serving defendant at the deposition. The modification herein will insure that defendant’s nonvoluntary appearance for deposition will not be used as a means of obtaining jurisdiction. In addition, defendant should be given the alternative of providing plaintiff’s counsel with her best information as to an address for Mrs. Blumenberg, defendant’s daughter; or produce Mrs. Blumenberg after service of a subpoena in care of counsel for defendant. Concur — Sullivan, J. P., Markewich, Bloom, Fein and Asch, JJ.