Sanchez v Metro Bldrs. Corp.

[*1] Sanchez v Metro Bldrs. Corp. 2012 NY Slip Op 51332(U) Decided on July 20, 2012 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 20, 2012
Supreme Court, Dutchess County

Juan P. Sanchez, Plaintiff,

against

Metro Builders Corp. and JMZ BUILDERS, INC., Defendants. METRO BUILDERS CORP., Third-Party Plaintiff, JORGE LEMA, Individually and d/b/a COCOS BROTHERS, MARCO B. LEMA, Individually and d/b/a COCOS BROTHERS, Third-Party Defendants.



4284/10



RICHARD M. WINOGRAD, ESQ.

GINARTE, O'DWYER GONZALEZ,

GALLARDO & WINOGRAD, LLP

Attorneys for Plaintiff

225 Broadway, 13th Floor

New York, New York 10007

MICHAEL P. BERSAK, ESQ.

McCABE & MACK, LLP

Attorneys for Defendant

METRO BUILDERS CORP.

63 Washington Street

P.O. Box 509

Poughkeepsie, New York 12602-0509

PAUL CALTAGIRONE, ESQ.

Attorney for DefendantJMZ BUILDERS, INC.

6 Cannon Street

Poughkeepsie, New York 12601

PATRICIA A. SULLIVAN, ESQ.

BARRY, McTIERNAN & MOORE, L.L.C.

Attorneys for Third-Party Defendants

Two Rector Street, 14th Floor

New York, New York 10006

James D. Pagones, J.

Plaintiff Juan P. Sanchez moves for an order appointing a commission for the non-party deposition of Franklin Lituma to be held in Guyaquil, Ecuador. The defendants, third-party plaintiff and third-party defendants oppose the instant application. The third-party defendants also cross-move for an order quashing the plaintiff's notice to take videotaped de bene esse deposition of Franklin Lituma and for a protective order prohibiting the holding of the deposition in Ecuador.

This action arises out of an accident that occurred on January 14, 2011, while the plaintiff was employed at a construction site in Poughkeepsie, New York. The plaintiff alleges he fell from a height while engaged in construction work causing severe and permanent injuries. The plaintiff testified during his deposition that he is unable to recall the circumstances of his accident from his personal knowledge. It is undisputed that the plaintiff's account of the events leading up to his fall is based upon information supplied to him by his uncle, Franklin Lituma, an eyewitness to the accident. While Mr. Lituma formerly resided in New Jersey, he has since returned to Ecuador. The plaintiff's counsel contends that Mr. Lituma is unable to obtain a visa at this time and is therefore unable to return to New York. The plaintiff therefore seeks a commission for Mr. Lituma's non-party deposition in Ecuador.

Initially, the court dispenses with the defendants' argument that the only means of obtaining the nonparty deposition in Ecuador is by means of letters rogatory. Letters rogatory are one of several procedural devices by which a court in one country may request authorities in another country to assist the requesting court in the administration of justice. (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3108:6, citing Laino v. Cuprum S.A. de C.V., 235 AD2d 25 [2nd Dept. 1997].) Letters rogatory should be used when there is reasonable belief that the witness in the foreign country may refuse to testify voluntarily or there is a question about the legality of taking a deposition in a foreign county absent an order of the foreign court. (Weinstein-Korn-Miller, NY Civ Prac ¶3108.06 [2nd ed.].) As a general rule, courts are reluctant to issue letters rogatory and will do so only as a last resort. (In re Siiderof, N.Y.L.J., Feb. 18, 1982, at 6, col. 6 [Sur. Ct. New York County; In re Dist. Attorney of Queens County, 132 Misc 2d 506 (Sup. Ct. Queens County 1986).] [*2]Accordingly, there is no per se prohibition against the plaintiff's request for the issuance of a commission.

A court may issue a commission where "necessary or convenient" for the taking of a deposition outside of the State. (Sorrentino v. Fedorczuk, 85 AD3d 759 [2nd Dept. 2011] citing CPLR §3108). While the plaintiff's counsel alleges that Franklin Lituma no longer resides in this country and that he is unable to obtain a visa to return, notably absent from the plaintiff's moving papers is any evidence in probative form establishing plaintiff's counsel's allegations. Specifically, the plaintiff failed to demonstrate that Mr. Lituma will not cooperate with a notice of deposition pursuant to CPLR §3109 or will not voluntarily come within this State or that "the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness to attend the examination." (Id. at 760, internal citation omitted). Accordingly, the plaintiff has failed to establish that a commission is "necessary or convenient" and the plaintiff's motion is therefore denied without prejudice to renew.

Moreover, because the plaintiff has failed to establish any basis for conducting the de bene esse deposition of Franklin Lituma in Ecuador, the third-party defendant's motion to quash the subpoena dated April 5, 2012 is granted.

The Court read and considered the following documents upon these applications:

PAGES NUMBERED

1.Notice of Motion....................... 1-3

Affirmation-Sullivan...............1-5

Exhibits...........................A-B

2.Affirmation in Support-Bersak...........1-2

Exhibit............................A

3.Affirmation in Opposition-Winograd......1-8

4.Order to Show Cause.....................1-3

Affirmation-Winograd...............1-10

Exhibits...........................A-B

5.Affirmation in Opposition-Bersak........1-7

6.Affirmation in Opposition/Reply

Affirmation-Sullivan...............1-6

The foregoing constitutes the decision and order of the Court. [*3]

Dated:Poughkeepsie, New York

July 20, 2012

ENTER

HON. JAMES D. PAGONES, A.J.S.C.