In a recent decision, the Appellate Term, Second Department, provided much needed clarification regarding an often misunderstood and commonly misapplied provision of the CPLR. Pursuant to CPLR §3110, which governs where a deposition is to be taken within the state, “when the person to be examined is a party or an officer, director, member or employee of a party, [a deposition shall be taken] within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending.”1 This provision is commonly cited within the no-fault arena as a basis for challenging the propriety of an EUO request. The success of this argument in the lower courts and in arbitration has been inconsistent, absent clear direction from the appellate courts.

In Arco Med. N.Y. v. Lancer Ins., 2 an appeal was taken from an order of the Civil Court of the City of New York, Kings County (Robin Garson, J.) granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to compel plaintiff to produce two of plaintiff’s principals for depositions. The Civil Court found, inter alia, that “defendant had failed to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment because it had violated 11 NYCRR §65-3.5(e) by scheduling the EUOs outside the county in which plaintiff is located, and that defendant had ‘failed to establish a willful noncompliance with the EUO request.’”3

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