Gabriel v. Johnston's L.P.

• Decision Date: 15 June 2012
• Citation: 98 A.D.3d 168,947 N.Y.S.2d 716,2012 N.Y. Slip Op. 04861
• Parties: Hugo Rafael Ramirez GABRIEL, Also Known as Cesar Mendez, et al., Plaintiffs–Appellants–Respondents, v. JOHNSTON'S L.P. GAS SERVICE, INC., Defendant–Respondent–Appellant, et al., Defendants. (Action No. 1.) Hugo Rafael Ramirez Gabriel, Also Known as Cesar Mendez, et al., Plaintiffs–Appellants, v. Anthony A. DeMarco, Anthony W. DeMarco, Anthony DeMarco & Sons, Inc., Defendants–Respondents, et al., Defendants. (Action No. 2.) Hugo Rafael Ramirez Gabriel, Also Known as Cesar Mendez, et al., Plaintiffs–Appellants–Respondents, v. Raytheon Company, Defendant–Respondent–Appellant. (Action No. 3.)
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 168

947 N.Y.S.2d 716

2012 N.Y. Slip Op. 04861

Hugo Rafael Ramirez GABRIEL, Also Known as Cesar Mendez, et al., Plaintiffs–Appellants–Respondents,

v.JOHNSTON'S L.P. GAS SERVICE, INC., Defendant–Respondent–Appellant, et al., Defendants. (Action No. 1.)

Hugo Rafael Ramirez Gabriel, Also Known as Cesar Mendez, et al., Plaintiffs–Appellants,

v.Anthony A. DeMarco, Anthony W. DeMarco, Anthony DeMarco & Sons, Inc., Defendants–Respondents, et al., Defendants. (Action No. 2.)

Hugo Rafael Ramirez Gabriel, Also Known as Cesar Mendez, et al., Plaintiffs–Appellants–Respondents,

v.Raytheon Company, Defendant–Respondent–Appellant. (Action No. 3.)

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

June 15, 2012.

Michaels & Smolak, P.C., Auburn (Michael G. Bersani of Counsel), for Plaintiffs–Appellants–Respondents and Plaintiffs–Appellants.

Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. Dibenedetto of Counsel), for Defendant–Respondent–Appellant Johnston's L.P. Gas Service, Inc.

Law Office of Francis E. Maloney, Jr., Syracuse (Francis E. Maloney, Jr., of Counsel), for Defendant–Respondent Anthony A. DeMarco.

Bond, Schoeneck & King, PLLC, Oswego (Scott J. Delconte of Counsel), for Defendant–Respondent–Appellant Raytheon Company.

Davidson & O'Mara, P.C., Elmira (Thomas F. O'Mara of Counsel), for Defendant–Respondent Anthony DeMarco & Sons, Inc.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.

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 time, Mendez and Gabriel had returned to Guatemala, and Lopez had been granted a voluntary departure by the United States Immigration Court that required him to leave the country by November 19, 2008.

III

By February 2011, only three of the nine plaintiffs remained in the United States. Five of the plaintiffs, i.e., Gabriel, Mendez, Lopez, Ernesto Diaz Vasquez (Vasquez) and Alvaro Reynoso Jimenez, also known as Rolando Perez (Jimenez), had returned to Guatemala, and one plaintiff, Vidal Zacarias Angel, also known as Jose Manuel Perez (Angel), had returned to Mexico. The remaining three plaintiffs, Eusemo Bravo Lopez, also known as Hugo Roblero (Eusemo), Benai Salas Mejias, also known as Rogelio Gonzalez (Mejias), and Ediberto Ramirez Perez (Perez) remained in the United States. Eusemo and Mejias, however, expected to leave the United States shortly, and only Perez planned to stay in the country indefinitely.

On February 15, 2011, plaintiffs moved, inter alia, for a protective order permitting those plaintiffs who had returned to Guatemala and had not been deposed by all defendants to be deposed via video conference. Plaintiffs also sought a protective order permitting those plaintiffs who had returned to Mexico and Guatemala to have their trial testimony taken by video conference. In support of the motion, plaintiffs' attorney in these actions explained the immigration status of each plaintiff, noted that plaintiffs would assume the cost of video conferencing and indicated that video conferencing was feasible in both Guatemala and Mexico. Moreover, plaintiffs' immigration attorney submitted an affidavit in which she described her unsuccessful attempts to obtain visas for Gabriel and Mendez and explained that such applications were expensive—each application came with a $140 fee and resulted in $500 in transportation expenses—and arduous in view of the 16–hour round trip from the village in which those plaintiffs reside to the United States Embassy in Guatemala City. The letters denying the visa applications for Gabriel and Mendez submitted with the affidavit of plaintiffs' immigration attorney establish that the subject applications were denied because those plaintiffs were “foreigners who ... remained illegally in the United States for one year and then [sought] re-admittance within the following 10 years from the date they left the United States” and who had “[e]nter[ed] or [tried] to enter the United States illegally after having been illegally present for a period of more than one year.” Plaintiffs' immigration attorney further noted that any visa applications made by the other plaintiffs would be denied for the same reasons.

Raytheon responded by cross-moving for an order dismissing the complaint with respect to Gabriel and Mendez in the event that they did not appear in New York for depositions. Raytheon also sought an order dismissing the complaint with respect to those plaintiffs who had left the country by that time, i.e., Gabriel, Mendez, Lopez, Vasquez, Jimenez and Angel, in the event that “they will not be present for the trial.” In support of its cross motion, Raytheon contended that the taking of deposition testimony by video conference was inappropriate because plaintiffs had not demonstrated that appearing for depositions in New York would cause an undue hardship, and because any hardship was self-imposed by virtue of plaintiffs' illegal entry into the United States. Raytheon alleged that it would suffer prejudice from the taking of depositions by video and that such prejudice included potential problems with technology, its ability to evaluate witness credibility, language barriers, potential perjury, witness identification and assessment of injuries. Likewise, Raytheon alleged that it would suffer prejudice from the use of videotaped testimony at trial, contending that such evidence would impair the jury's assessment of witness credibility and plaintiffs' injuries, and would preclude defendants from calling plaintiffs as rebuttal witnesses.

Similar to Raytheon, Johnston cross-moved for, inter alia, an order compelling Gabriel and Mendez to appear for depositions and providing that “any plaintiff ... not present to testify ... [at] trial shall have [his] complaint dismissed.” In support of its cross motion, Johnston contended that plaintiffs' inability to attend the depositions and trial was a “consequence of their illegal activity” and that defendants would be prejudiced by the taking of depositions through video conference inasmuch as they would be deprived of “an opportunity to conduct ... in-person deposition[s]” of Gabriel and Mendez. With respect to the issue whether to permit the use of video testimony at trial, Johnston contended that it would be a “logistical nightmare” to orchestrate such testimony and that such testimony could impede Johnston's ability to establish “grave” injuries, a required element of Johnston's claims against plaintiffs' employer, DeMarco, Inc. ( see generallyWorkers' Compensation Law § 11).

The DeMarco defendants opposed plaintiffs' motion by way of an affidavit in which their attorney contended that plaintiffs should not be permitted to testify at trial by video conference because such practice is unauthorized by case law and because of the difficulty of locating an interpreter and enforcing the witness oaths. On the issue whether depositions should be conducted by video conference, the attorney for the DeMarco defendants contended that plaintiffs “failed to show that hardship exists,” and he suggested that plaintiffs' absence was “largely self-imposed” and related to plaintiffs' conduct.

In reply, plaintiffs' attorney attempted to explain the circumstances giving rise to the decision of most of the plaintiffs to return to Central America. In sum and...