civil practice law and rules.’’
Here, as the proponent produced one competent witness who
resides in the state, the cost of the examination of the Florida
witness, in the absence of good cause shown, is governed by
CPLR 3116 (d), which provides that ‘‘the party taking the dep-
osition shall bear the expense thereof.’’ As the proponent paid a
private investigator to attempt to have the second witness
testify, it does not appear that the proponent’s counsel is in any
way involved in the inability to obtain the testimony of the
second witness to date. Furthermore, Barbara Smith failed to
present ‘‘good cause’’ to deviate from the rule that the party
seeking the deposition pays for it. In the event that Barbara
Smith finds it more economical to conduct the deposition by
video conference than to travel to Florida, there does not ap-
pear to be any reason why that request should not be granted
(see Matter of Singh, 22 Misc 3d 288 [2008]; see also Rogovin v
Rogovin, 3 AD3d 352 [2004]).
Accordingly, this decision constitutes the order of the court
denying the motion to dispense with the testimony of the Flor-
ida witness, and directing Barbara Smith to pay for the cost and
to arrange to take the testimony of the Florida witness. Barbara
Smith shall have the option of either conducting the deposition
by video conference or in person in Florida. The court notes
that ‘‘[u]nless otherwise stipulated to by the parties, the officer
administering the oath shall be physically present at the place
of the deposition.’’ (CPLR 3113 [d].) In the event that Barbara
MATTER OF SMITH [29 Misc 3d 832] 835
Smith fails to arrange for the deposition within 90 days of the
date of this decision and order, the proponent may renew her
motion to dispense with the testimony of the Florida attesting