Appeal and cross appeals from an order of the Supreme Court, Oswego County (James W. McCarthy, J.), entered August 5, 2011 in a personal injury action.
Gabriel v Johnston's L.P. Gas Serv., Inc.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.
The order, inter alia, denied those parts of plaintiffs' motion for a protective order relating to the taking of certain depositions and trial testimony via video and denied, without prejudice, the cross motions of defendants Raytheon Company and Johnston's L.P. Gas Service, Inc. for dismissal of the claims of the majority of plaintiffs against them.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating that part of the third ordering paragraph concerning the depositions of plaintiffs and granting those parts of plaintiffs' motion for a protective order permitting the undeposed plaintiffs who have returned to Guatemala to be deposed in Guatemala via video conference and permitting the plaintiffs who have returned to Mexico and Guatemala to testify at trial by video and as modified the order is affirmed without costs.
Opinion by Fahey, J.: I The primary issue on this appeal is whether Supreme Court erred in denying those parts of plaintiffs' motion for a protective order permitting certain plaintiffs who have not been deposed and have left the United States for Guatemala to be deposed in Guatemala via video conference and allowing those plaintiffs who have left the United States for either Mexico or Guatemala to testify at trial by video. We conclude that the court abused its discretion in denying those parts of plaintiffs' motion with respect to both the depositions and the trial testimony. II
These consolidated actions had their genesis in an October 6, 2005 propane gas explosion at a farm camp in Schroeppel, New York that killed one migrant worker and injured nine others. Plaintiffs are the nine injured workers, six of whom are citizens of Guatemala and three of whom are citizens of Mexico. All plaintiffs were in the United States as illegal, undocumented farm workers at the time of the explosion, and they were employed by defendant Anthony DeMarco & Sons, Inc. (DeMarco, Inc.). Defendants Anthony A. DeMarco, Anthony W. DeMarco and DeMarco, Inc. (collectively, DeMarco defendants) provided living quarters for plaintiffs and owned the building where the explosion occurred. Defendant Raytheon Company (Raytheon) allegedly manufactured a stove involved in the explosion, and defendant Johnston's L.P. Gas Service, Inc. (Johnston) allegedly filled some propane tanks at the explosion site.
After the explosion, plaintiffs commenced these actions seeking damages for injuries they sustained in that accident, and the matter proceeded to the point that seven of the nine plaintiffs had been deposed by all defendants. Plaintiff Hugo Rafael Ramirez Gabriel, also known as Cesar Mendez (Mendez), had been deposed only by Johnston, and plaintiff Lucio Jimenez Gabriel, also known as Marco Antonio Jimenez (Gabriel), remained undeposed.
The foregoing depositions followed a round of discovery motion practice undertaken by plaintiffs and designed to compel completion of the depositions and medical examinations of plaintiffs by November 2008. The impetus for that motion practice was obvious: plaintiffs sought to go on record before leaving the United States, either voluntarily or otherwise. By order entered August 8, 2008, the court directed that the depositions of the seven plaintiffs who then remained in the United States were to take place during the first two weeks of November 2008, and that any medical examinations of those plaintiffs undertaken on behalf of defendants were to occur by November 30, 2008, with the caveat that the examination of plaintiff Ledis Vasquez Lopez (Lopez) was to occur by November 17, 2008. At that ...