Gabriel v. Johnston's L.P. Gas Service, Inc.

104 A.D.3d 1262, 960 N.Y.S.2d 691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2013
• Status: Published

Opinion

Motion or reargument of the appeal is granted to the extent that, upon reargument, the opinion and order entered June 15, 2012 (98 AD3d 168 [2012]) is amended by deleting the ordering paragraph and substituting the following ordering paragraph: “It is hereby ordered that the order so appealed from is unanimously modified on the law by vacating the third ordering paragraph 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.” The opinion and order is further amended by inserting the following sentence after the first sentence of section IV: “Nevertheless, we exercise our power to reach that issue (see generally Bracken v Niagara Frontier Transp. Auth., 251 AD2d 1068, 1069 [1998]), and we conclude that the court erred in determining that those medical examinations must be conducted in the United States inasmuch as no such examinations have been requested (see generally Murad v Russo, 74 AD3d 1823, 1824 [2010], Iv dismissed 16 NY3d 732 [2011]; Burnett v Columbus McKinnon Corp., 69 AD3d 58, 64 [2009]).” The opinion and order is further amended by inserting the words “of plaintiffs’ contention with respect to the video depositions” after the words “[w]e now turn to the merits” in section IV(A) (2). The opinion and order is further amended by deleting the words “that part of’ and “concerning the depositions of plaintiffs” from the sentence in section VI. Present— Smith, J.E, Fahey, Peradotto and Lindley, JJ.