YOSHIDA PRINTING CO LTD v. AIBA

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Supreme Court, Appellate Division, First Department, New York.

YOSHIDA PRINTING CO., LTD., Plaintiff-Appellant, v. Isao AIBA, Defendant-Respondent.

Decided: June 12, 1997

Before MURPHY, P.J., and MILONAS, TOM, ANDRIAS and COLABELLA, JJ. Paul E. Summit, for Plaintiff-Appellant. Lloyd DeVos, for Defendant-Respondent.

Orders, Supreme Court, New York County (Leland DeGrasse, J.), entered November 21, 1996 and January 21, 1997, which, insofar as appealed from, denied plaintiff's cross motion for a protective order against oral depositions of two witnesses, and denied plaintiff's motion to renew its motion for a protective order, respectively, unanimously affirmed, with costs.

 The motion for a protective order was properly denied in the absence of an affidavit of the translator of the documents purporting to demonstrate that the two witnesses in question are too frail to travel to New York (CPLR 2101[b] ).  We note plaintiff's representation, made for purposes of opposing a prior motion by defendant to dismiss the action on the ground of forum non conveniens, that it would make the two witnesses available for depositions in New York at its own expense (213 A.D.2d 275, 624 N.Y.S.2d 128).   Plaintiff's motion to renew was properly denied for failure to show that the original omission of the documents was the result of an excusable mistake or inadvertence.

MEMORANDUM DECISION.