Bank of Ny Mellon v. Quinn

VERMONT SUPERIOR COURT CIVIL DIVISION
Windsor Unit Case No. 736-10-09 Wrcv
12 The Green
Woodstock VT 05091
802-457-2121
www.vermontjudiciary.org

The Bank of New York Mellon vs. Quinn et al

ENTRY REGARDING MOTION
Title: Motion for Remote Testimony (Motion 293)
Motion for Remote Testimony (Motion 294)
Filer: Sheldon M. Katz
Filed Date: May 24, 2024 (Motion 293)
May 28, 2024 (Motion 294)

A merits hearing in this fourteen-year-old foreclosure action is scheduled for Friday, May
31, 2024, and the hearing notice went out about eight weeks ago. On Friday, May 24th and
Tuesday, May 28th, plaintiff filed two motions seeking permission for two different witnesses to
testify remotely at the merits hearing, either by telephone or video. As to both witnesses, plaintiff
characterized their testimony as “brief” and “not complex,” but plaintiff did not provide the court
with any substantive information as to the proposed content of their testimony, nor did plaintiff
provide the court with enough information to permit an independent evaluation as to the
importance of their testimony to the case. For both witnesses, the reason for the remote
testimony is convenience, time, and expense, because they live in other states.
Generally, the rule is that civil division hearings are held in person, and the in-person
nature of this merits hearing was clearly stated on the hearing notice. Vt. R. Civ. P. 43.1(a)(1). A
party may seek permission for a witness to testify by remote means, but the motion must be filed
“reasonably in advance of the proceeding.” Vt. R. Civ. P. 43.1(d)(2)(C). Although the rule itself
does not define what is meant by this temporal requirement, and although the rule does not carry
forward language from a prior version of the rule that had required such motions to be filed “at
least 28 days prior to the date of the scheduled trial or any other proceeding scheduled more than
28 days in advance,” the idea of the rule remains that the motion must be filed sufficiently in
advance of the hearing to permit a meaningful court determination as to “whether there is good
cause under the factors.” Vt. R. Civ. P. 43.1, Reporter’s Notes—2023 Amendment; Vt. R. Civ. P.
43.1(c)(2)(A) (prior version effective until October 1, 2023).
In this case, notice of the merits hearing was provided about eight weeks ago, but
plaintiff filed the motions only several business days before trial. This is not enough time to
permit the self-represented defendant (who is not an electronic filer) a meaningful opportunity to
respond. Moreover, plaintiff has provided only conclusory representations about the content of
the proposed witness testimony, which means that the court cannot independently assess whether
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the witnesses are testifying about matters that might be important to the court's decision, or
important to defendant's defenses, or whether remote testimony might impair defendant's ability
to conduct effective cross-examination. See, e.g., Vt. R. Civ. P. 43.1(h) (listing non-exclusive
factors for the court's evaluation, including whether the procedure would allow for full and
effective and examination and cross-examination of witnesses by all parties and the court, and
whether any undue prejudice would result to a party). For these reasons, the motions are denied.

Electronically signed on Wednesday, May 29, 2024 pursuant to V.R.E.F. 9(d).

H. Dickson Corbett
Superior Court Judge

Vermont Superior Court
Filed 05/29/24
Windsor nit

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736-10-09 Wrev The Bank of New York Mellon vs. Quinn et al