The following papers read on this motion:Notice of Motion/Supporting Exhibits XAffirmation in Opposition XReply Affirmation X Plaintiff, Anna Stefanidis (Stefanidis), moves this court for a protective order, pursuant to CPLR §3103(a), preventing her from having to appear at a deposition and to allow her to be deposed by written interrogatories. Defendant, Mitchell R. Goldberg (Goldberg), opposes the motion.Stefanidis commenced this pedestrian knockdown, negligence action by summons and complaint dated January 24, 2018. Issue was joined by service of an answer dated April 5, 2018. Discovery is currently ongoing.Before a motion relating to discovery or a bill of particulars can be brought, the movant is required to submit an affirmation of good faith indicating “that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.” 22 NYCRR 202.7(a). The affirmation of good faith is supposed to indicate that the parties consulted over the discovery issues and the “time, place and nature of the consultation and the issues discussed…,” unless it would have been futile to do so. 22 NYCRR 202.7(c). The parties are to make a diligent effort to resolve the discovery dispute. (Deutsch v. Grunwald, 110 A.D.3d 949 [2nd Dept. 2013]; Murphy v. County of Suffolk, 115 A.D.3d 820 [2nd Dept. 2014]; Chichilnisky v. Trustees of Columbia University in City of New York, 45 A.D.3d 393 [1st Dept. 2007]). Herein, Stefanidis submits an appropriate affirmation of good faith. Further, the court acknowledges under the circumstances of this case, that any further conferral would be futile.The issue herein is whether Stefanidis can be deposed by written interrogatories instead of through oral questions. Stefanidis suffers from Mitochondrial disease which, inter alia, impacts her ability to see and hear. As a result, she claims she can only effectively communicate through writing. Due to her hearing issues, she does not understand when people are speaking to her. Due to her vison problems, she cannot read lips and does not know sign language. Her common mode of communication is for someone to write something to her in large letters, for her to use a magnifying glass with an attached light up against one eye, and to read in that manner. She can offer verbal responses, but she does not always understand what she is reading.Her counsel described the manner in which he communicates with her, which includes him writing out what he wishes to discuss with her, her reading it with the magnifying glass, and her indicating if she understands. If she does, they can move forward. If she does not, counsel has to try to explain it again. He states it is very time consuming and upsetting for Stefanidis when she has trouble understanding.In support of her motion, and as proof of her condition, Stefanidis submits her medical records and the affidavit of Deborah Fiderer. Ms. Fiderer is the Coordinator for Community Service Programs at the Helen Keller National Center for Deaf-Blind Youths and Adults. Ms. Fiderer states she has known, and assisted, Stefanidis for 10-15 years. Ms. Fiderer confirms Stefanidis’ communication limitations, and offers her own opinion that Stefanidis would not be able to be deposed by oral questions. For all the foregoing, Stefanidis seeks leave to be deposed by written interrogatories as opposed to oral questions.In opposition, Goldberg’s counsel acknowledges Stefanidis’ limitations but bemoans the fact that being unable to question her orally will prevent him from being able to observe her answer the questions, will prevent him from being able to ask follow up questions based upon certain answers, and will prevent him from being able to assess her credibility. Therefore, he offers a compromise whereby Stefanidis appears for the deposition, answers written questions in his presence, and the answers are then read into the record.A trial court has broad discretion in supervising discovery. (Vasile v. Chisena, 272 AD2d 610 [2d Dept 2000]). CPLR §3103(a) allows the court to fashion a discovery order that will “…prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice…”. Along these lines, courts have allowed the use of other disclosure devices where an oral deposition would not be appropriate (see Ceron v. Belilovsky, 92 AD3d 714 [2d Dept 2012]; Button v. Guererri, 298 AD2d 947 [4th Dept. 2002]). Courts have stayed depositions due to illness (Verini v. Bochetto, 40 AD2d 752 [2d Dept. 1975]) and have directed that “necessary accommodations and restrictions” be met to meet a witnesses’ needs. (Colechio-Thomas v. County of Cattaraugus, 85 AD3d 1638 [4th Dept 2011]).Herein, using written interrogatories is a reasonable accommodation considering Stefanidis’ limitations. Neither counsel’s desire to observe Stefanidis struggle through the questioning process, nor his desire to be able to immediately assess her credibility or ask an immediate follow-up question would justify putting Stefanidis through the arduous process of being questioned orally, or having to read the questions in counsel’s presence and have her answers read into the record. Further, such a process would take an inordinate amount of time under these circumstances.Within 10 days of being served with notice of entry of this order, Goldberg shall submit his written questions to Stefanidis’ counsel. Stefanidis shall then have 20 days to respond, under oath, to the questions. As with deposition questions, Stefanidis may object to a question, but must comply with 22 NYCRR 221.1 in so doing. In other words, all questions must be answered, with an objection noted, unless it delves into privilege, or unless it is a question that counsel finds so improper that a ruling would normally be sought. Under such a situation, a conference with the court should be arranged as soon as is practical to resolve the issue.Should Goldberg believe an interrogatory answer requires a follow up question, he shall first confer with his adversary, and then seek leave of the court should the parties be unable to resolve the issue.Accordingly, it is herebyORDERED, that Stefanidis’ motion for a protective order is GRANTED, consistent with the terms of this order; and it is furtherORDERED, that within 10 days of being served with notice of entry of this order, Goldberg shall submit his written questions to Stefanidis’ counsel. Stefanidis shall then have 20 days to respond, under oath, to the questions, consistent with the terms of this order. These time frames may be amended with court approval.This constitutes the decision and order of the court.Dated: February 20, 2019Mineola, N.Y.
