FILED: NEW YORK COUNTY CLERK 05/24/2013 INDEX NO /2012 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/24/2013 : : : : : : : : : : : : : :

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1 FILED NEW YORK COUNTY CLERK 05/24/2013 INDEX NO /2012 NYSCEF DOC. NO. 22 RECEIVED NYSCEF 05/24/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BOLAT NAZARBAYEV, -against- Plaintiff, DANIYAR KESIKBAYEV (aka DANIYAR NAZARBAYEV) and MAIRA KURMANGALIYEVA (aka MAIRA NAZARBAYEVA), Defendant. Index No /2012 Part 3 (Bransten, J.S.C.) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S MOTION FOR PROTECTIVE ORDER Motion Seq. No. 2 May 24, 2013 JOHN H. SNYDER PLLC John H. Snyder Abaigeal Van Deerlin 555 Fifth Avenue, Suite 1700 New York, New York Tel (212) Fax (646) john@jhsnyderlaw.com Special Litigation Counsel for Plaintiff

2 Page ii of iii TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT... 1 BACKGROUND... 2 ARGUMENT... 3 I. THIS COURT SHOULD ISSUE A PROTECTIVE ORDER ALLOWING PLAINTIFF TO BE DEPOSED BY VIDEO CONFERENCE... 3 CONCLUSION... 6 ii

3 Page iii of iii TABLE OF AUTHORITIES Cases Page Cutler v. Verizon New York, Inc., 2008 N.Y. Slip Op (U) (Sup. Ct., New York County 2008) Farrakhan v. N.Y.P. Holdings, 226 A.D.2d 133, 640 N.Y.S.2d 80 (1st Dep t 1996)... 3 Gabriel v. Johnston s L.P. Gas Serv., Inc., 98 A.D.3d 168, 947 N.Y.S.2d 716 (4th Dep t 2012)... 3, 5 Hoffman v. Kraus, 260 A.D.2d 435, 688 N.Y.S.2d 575 (2d Dep t 1999)... 4 Rogovin v. Rogovin, 3 A.D.3d 352, 770 N.Y.S.2d 342 (1st Dep t 2004)... 6 Wygocki v. Milford Plaza Hotel, 38 A.D.3d 237, 831 N.Y.S.2d 381 (2007)... 5, 6 Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818, 916 N.Y.S.2d 525 (2d Dep t 2011)... 6 Statutes and Rules CPLR , 3 iii

4 Page 1 of 7 Bolat Nazarbayev ( Bolat ), plaintiff in the above-captioned matter, submits this memorandum of law in support of his motion under CPLR 3103, for a protective order (1) precluding Defendants from requiring Plaintiff to appear for deposition in New York; and (2) permitting Plaintiff to be deposed, in Kazakhstan, by video conference or other remote electronic means. PRELIMINARY STATEMENT Plaintiff seeks this protective order on the grounds that compelling Plaintiff to travel from Kazakhstan to New York for a deposition would cause him undue medical hardship. Bolat resides in Almaty, Kazakhstan. He is currently being treated for a host of serious medical issues that, according to his physicians, make air travel exceeding three hours unsafe for him. In light of the fact that even the shortest direct flights between Europe and the United States take approximately seven hours, requiring Bolat to appear for a deposition in New York would pose a serious risk to his health. Accordingly, Bolat requests that this Court issue a protective order precluding Defendants from requiring him to appear for deposition in New York, and permitting him to be deposed in Kazakhstan by video conference or other remote electronic means. 1

5 Page 2 of 7 BACKGROUND Plaintiff filed this action on April 25, In sum and substance, this action contends that Plaintiff s former wife 1 (Maira) and her son (Daniyar) contrived to steal from Plaintiff three apartments in Manhattan, including a $20 million apartment located in the Plaza, which was stolen by means of a fraudulent and legally defective power-of-attorney. The parties commenced discovery in September 2012; at present, documentary discovery is substantially completed, and substantial non-party document discovery has taken place; however, the parties and certain non-party witnesses have yet to be deposed. On March 18, 2013, counsel for Defendants noticed Bolat s deposition for April 8, 2013, to be taken in Sheepshead Bay, Brooklyn. Pursuant to Commercial Division Rule 24 and Part 3 practices, on March 19, 2013 counsel for the parties met and conferred in a court conference in an effort to resolve the issue of whether Bolat could be deposed, in Kazakhstan, by video conference or other remote electronic means, but were unable to reach an agreement. 1 Plaintiff s marriage to Maira was annulled in

6 Page 3 of 7 ARGUMENT I. THE COURT SHOULD ISSUE A PROTECTIVE ORDER ALLOWING PLAINTIFF TO BE DEPOSED BY VIDEO CONFERENCE As a general rule, a non-resident plaintiff who has invoked the jurisdiction of New York State by bringing suit in its courts must stand ready to be deposed in New York unless it is shown that undue hardship would result. Gabriel v. Johnston s L.P. Gas Serv., Inc., 98 A.D.3d 168, , 947 N.Y.S.2d 716, 721 (4th Dep t 2012) quoting Farrakhan v. N.Y.P. Holdings, 226 A.D.2d 133, , 640 N.Y.S.2d 80, 82 (1st Dep t 1996). The Court, however, may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. CPLR 3103(a). The protective order must be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. Id. Upon a showing of hardship, a court has the authority to issue a protective order requiring that a party s deposition be conducted outside of the country where the action was commenced, and it may direct that a deposition must be conducted in a foreign country. Gabriel at 176 (internal citations omitted). 3

7 Page 4 of 7 Requiring Bolat to appear for deposition in New York would impose undue hardship on him, as it would pose a serious threat to his health. Bolat is 60 years old. He is currently receiving treatment for the following medical conditions third-stage arterial hypertension, hypoxic ischemic encephalopathy, ischaemic heart disease, multifocal atherosclerosis, dyslipidemia, type 2 diabetes, visceralabdominal obesity, and steatosis of the liver. See Exh. 1 to Sima Aff. Because of his unstable blood pressure, in combination with his other, concurrent diseases, his physicians have advised him against taking plane flights longer than three hours. See Exh. 1 to Sima Aff. Bolat resides in Almaty, Kazakhstan, which is about 6,500 miles from New York. In order for him to appear for deposition in New York, Bolat will have to travel hours each way. Even the shortest flight between Europe and the United States takes about seven hours, and thus, to fly to New York, Bolat would have to jeopardize his health and disregard his doctors orders. New York courts have often issued protective orders in cases where the undue hardship faced by the party seeking relief consisted of a serious medical condition. See Hoffman v. Kraus, 260 A.D.2d 435, 688 N.Y.S.2d 575 (2d Dep t 1999) (failing health of 70-year-old resident of Hungary constituted undue hardship warranting a protective order precluding her from being required to appear for deposition in New York); Cutler v. Verizon New York, Inc., 2008 N.Y. 4

8 Page 5 of 7 Slip Op (U) (Sup. Ct., New York County 2008) (physician s affidavit stating that Plaintiff s prior stroke and multiple other medical problems rendered travel a hardship made it appropriate to grant a protective order to limit Plaintiff's travel to New York due to her ill health ); Wygocki v. Milford Plaza Hotel, 38 A.D.3d 237, 831 N.Y.S.2d 381 (1st Dep t 2007) (issuing protective order permitting video conference deposition on the grounds that overseas travel would cause undue hardship to plaintiff, who was in poor health). In Wygocki, the plaintiff was a 76-year-old resident of Northern Ireland. Like Bolat, she submitted to the court a sworn letter from her doctor identifying her many physical ailments, and advising that traveling to New York could cause plaintiff further serious problems. Id. at 237. Based on this letter, the motion court correctly found that a deposition in New York would be an undue hardship for plaintiff, warranting an exception to the general rule that a nonresident who brings suit in New York must stand ready to be deposed in New York, and the First Appellate Division unanimously affirmed the lower court s decision. Id. New York courts have often permitted parties to appear for deposition by video conference. See Gabriel v. Johnston's L.P. Gas Serv., Inc. (granting plaintiff s motion to conduct plaintiff s deposition by video conference in light of the costs required to appear for deposition and plaintiffs inability to obtain visas); Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818, 916 N.Y.S.2d 525 (2d Dep t 2011) 5

9 Page 6 of 7 (plaintiff allowed to appear for deposition by remote electronic means ); Wygocki v. Milford Plaza Hotel (plaintiff in failing health permitted to give deposition by video conference); Rogovin v. Rogovin, 3 A.D.3d 352, 353, 770 N.Y.S.2d 342, 343 (1st Dep t 2004) ( it was proper to permit defendant to be deposed by means of live video conferencing, a substitute for live testimony we find reasonable under the circumstances. ). The Court should note that Plaintiff has offered to make all necessary arrangements and cover all costs of taking Bolat s deposition remotely, so as to avoid prejudice to Defendants. Plaintiff submits that without the requested protective order, Defendants will require him to seriously risk his health by having to take unavoidably long plane flights against the advice of three physicians to appear for a deposition that can just as easily be conducted by video conference. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that the Court, pursuant to CPLR 3103 and the Court s inherent power to manage the scheduling of discovery in matters before it, enter a protective order precluding Defendants from requiring Plaintiff to appear for deposition in New York, and permitting Plaintiff to be deposed, in Kazakhstan, by video conference or other remote electronic means. 6

10 Page 7 of 7 Dated New York, New York May 24, 2013 JOHN H. SNYDER PLLC By John H. Snyder Abaigeal Van Deerlin 555 Fifth Avenue, Suite 1700 New York, New York Tel (212) Fax (646) john@jhsnyderlaw.com Special Litigation Counsel for Plaintiff 7