Chinese national whose return visa to the US was denied can present his videotaped trial testimony and be examined in China by defendants’ doctor.

Plaintiff Chinese citizen was injured while he was a passenger on a bus. Plaintiff appeared for his deposition which was not completed on that date and was adjourned to be completed at a later date. Plaintiff moved back to China before the deposition was completed. Plaintiff had been living in the United States by himself and moved back to China to be with his wife and child lived, allegedly due to his inability to care for himself.

Defendants moved pursuant to CPLR 3126 to dismiss plaintiff’s complaint for failure to continue his deposition or to appear for an IME, or alternatively to compel plaintiff to appear or be precluded from testifying at trial. Plaintiff cross-moved for a protective order directing that his deposition be conducted by remote electronic means and for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing in person due to his inability to obtain a visa to enter the United States.
Held: Because plaintiff’s applications for a visa to return to the United States had been denied, plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship. Plaintiff would therefore be permitted to present a video transcription of his deposition testimony at trial in lieu of appearing at trial to testify. Plaintiff met the criteria set forth in CPLR 3117(a)(3)(ii), (iv), and (v), to wit, that the witness (plaintiff himself) is more than 100 miles from the place of trial, that plaintiff is unable to procure his attendance at trial, and that such exceptional circumstances exist as to make the use of plaintiff’s videotaped testimony desirable in the interest of justice and with due regard to the importance of presenting his testimony orally in open court.
Although plaintiff would not be required to pay business class airfare and accommodations for defendants’ examining doctor to travel to China, plaintiff had consented to pay the reasonable cost of airfare and accommodations for the defendants’ doctor to conduct the independent medical examination in China.

Feng Wang v A & W Travel, Inc., 2015 NY Slip Op 06312 (2d Dept July 29, 2015).

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