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Marine | New York Southern
Order
ORDER terminating 43 Letter Motion to Compel. The Court, having considered Plaintiff's letter motion and Defendants' opposition, see Dkt. 43, DENIES the motion. Rule 32 permits the use of a deposition in lieu of live trial testimony und er "exceptional circumstances." Fed. R. Civ. P. 32(a)(4)(E). Dr. Rosen's busy practice is not an exceptional circumstance. Indeed, while Dr. Rosen represents that his patients typically "wait approximately two to three months to o btain an appointment," and some "as long as six months," Dkt. 43-1 Paragraph 4, there is no trial scheduled in this matter, and neither Dr. Rosen nor Plaintiff has explained why Dr. Rosen cannot testify in person if given advanced noti ce of the trial date. See, e.g., Steele v. Costco Wholesale Corp., No. 03-cv-00713 (NG) (MDG), 2005 WL 8156820, at *1 (E.D.N.Y. Mar. 9, 2005) (denying Rule 32 motion where "no trial date has been set and [the doctor]... provide[d] no information whatsoever as to why he is unable to testify in the future" but rather "generally argue[d] that [his] scheduling and availability prevent[ed] him from testifying at trial" (alteration adopted) (citation omitted)); Rubel v. Eli Lilly & Co., 160 F.R.D. 28, 29 (S.D.N.Y. 1995) (finding exceptional circumstances existed where doctor in four-physician practice was suddenly "handling the entire practice alone" given one colleague's retirement, the second's departure on maternity leave, and the third's hospitalization, all "[w]ithin the last two weeks"). The Clerk of Court is respectfully directed to terminate the motion at Dkt. 43. SO ORDERED. (Signed by Judge Jennifer L. Rochon on 9/8/2026) (jjc)
Response to Motion
LETTER RESPONSE to Motion addressed to Judge Jennifer L. Rochon from Gino A. Zonghetti dated September 4, 2026 re: 43 FIRST LETTER MOTION to Compel Defendants to appear at de bene esse deposition of Dr. David Rosen addressed to Judge Jennifer L. Rochon from Jacob Shisha dated September 3, 2026. . Document filed by MV SLNC GOODWILL, Nord Goodwill LLC, Schuyler Line Navigation Company LLC. (Attachments: # 1 Supplement Expert Disclosure for Michael Rosen MD).(Zonghetti, Gino)
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