               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

587
CA 11-02517
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


HUGO RAFAEL RAMIREZ GABRIEL, ALSO KNOWN AS
CESAR MENDEZ, ET AL.,
PLAINTIFFS-APPELLANTS-RESPONDENTS,

                    V                                        OPINION AND ORDER

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.)


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.
                                 -2-                           587
                                                         CA 11-02517

DAVIDSON & O’MARA, P.C., ELMIRA (THOMAS F. O’MARA OF COUNSEL), FOR
DEFENDANT-RESPONDENT ANTHONY DEMARCO & SONS, INC.


     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. 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
                                 -3-                           587
                                                         CA 11-02517

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
                                 -4-                           587
                                                         CA 11-02517

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 generally Workers’ 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
                                 -5-                           587
                                                         CA 11-02517

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 substance, plaintiffs have on
average a third-grade education, speak very little English and
generally left the United States as a direct result of the medical and
financial hardships imposed by the accident. By the time plaintiffs
tendered their reply, Eusemo was subject to a fate similar to that of
Lopez inasmuch as Eusemo had been ordered by the United States
Immigration Court to leave the United States by August 31, 2011.

     The exhibits attached to the reply affirmation of plaintiffs’
attorney consist in part of excerpts from the depositions of those
plaintiffs who were deposed, which establish that those plaintiffs are
ill-educated, illegal migrant workers from Central America and have
families there. The subject exhibits also included the affidavits of
Jimenez, Vasquez and Angel establishing that each of those plaintiffs
had been severely injured in the accident, expected to receive
workers’ compensation settlements and sought to return to families
that they had not seen in several years given their uninterrupted
presence in the United States.

     An affidavit of Lopez also annexed to the reply affidavit of
plaintiffs’ attorney established that Lopez, too, was seriously
injured and separated from his family for many years given his
continued presence in this country, but unlike the other affiants, he
had been ordered to leave the United States by November 2008. In his
affidavit, Mejias averred that he intended to return to Mexico to live
more frugally on his workers’ compensation settlement, and that he
could neither work nor qualify for public assistance in the United
States. Mejias, who was rendered a paraplegic as a result of the
explosion, also indicated that he would be cared for by his family in
Mexico and that he thought it unlikely that he would be granted a visa
to re-enter the United States for trial given his uninterrupted
presence here since at least the date of the accident. Plaintiffs’
immigration attorney did not consider Mejias’s case in the affidavit
she offered in reply to the cross motions, but she noted therein that
her requests for visa waivers for Gabriel and Mendez had been denied
by the United States Embassy in Guatemala.

     After receiving reply papers from Johnston and Raytheon
reiterating their contentions that plaintiffs’ hardship was of their
own making and that those defendants would be prejudiced to the extent
that the court permitted plaintiffs to testify by video, the court
issued an order characterizing this matter as one “in which each of
the plaintiffs for whom the protective order is sought entered the
United States illegally and left the United States voluntarily, and
who are presumptively unable to return to the United States as a
result of their illegal initial entry.” “Balancing the equities
presented,” the court set a trial date and, in the third ordering
                                 -6-                           587
                                                         CA 11-02517

paragraph, directed “[t]hat plaintiffs must return to the United
States for depositions and independent medical examinations, if
requested by defendants . . . [60] days prior to trial.” The court
also denied the cross motions without prejudice. Plaintiffs appeal,
and Raytheon and Johnston cross-appeal.

                                  IV

     We begin with plaintiffs’ appeal and note at the outset that
plaintiffs have abandoned any contention with respect to the issue
whether those plaintiffs who have left the United States must return
to this country for medical examinations within 60 days of trial (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984). We also note what we
perceive to be the nature of plaintiffs’ contentions on appeal. At
this point, only two plaintiffs—Gabriel and Mendez—have yet to be
fully deposed. In our view, plaintiffs contend on appeal that the
court should have permitted video depositions of all plaintiffs, i.e.,
initial depositions of Gabriel and Mendez and second video depositions
of all plaintiffs to be used at trial.

                                  A

     We now turn to the merits and consider first the question whether
the court should have permitted plaintiffs to give deposition
testimony from Mexico and Guatemala. “As a general rule, a
non-resident plaintiff who has invoked the jurisdiction of New York
State by bringing suit in its courts must stand ready to be deposed in
New York unless it is shown that undue hardship would result”
(Farrakhan v N.Y.P. Holdings, 226 AD2d 133, 135-136; see Gartner v
Unified Windows, Doors & Siding, Inc., 68 AD3d 815, 815; Rodriguez v
Infinity Ins. Co., 283 AD2d 969, 970). Nevertheless,

          “[t]he court may at any time on its own
          initiative, or on motion of any party or of any
          person from whom discovery is sought, make a
          protective order denying, limiting, conditioning
          or regulating the use of any disclosure device.
          Such order shall be designed to prevent
          unreasonable annoyance, expense, embarrassment,
          disadvantage, or other prejudice to any person or
          the courts” (CPLR 3103 [a]).

Put differently, upon a showing of undue hardship, a court has the
authority to issue a protective order requiring that a party’s
deposition be conducted outside of the country where the action was
commenced (see Doherty v City of New York, 24 AD3d 275, 275-276;
Rogovin v Rogovin, 3 AD3d 352, 353), and it may direct that a
deposition must be conducted in a foreign country (see Gartner, 68
AD3d at 815-816; Hoffman v Kraus, 260 AD2d 435, 437).

     We conclude that the court abused its discretion in denying that
part of plaintiffs’ motion for a protective order pursuant to CPLR
3103 (a) directing that the depositions of Gabriel and Mendez be
                                 -7-                           587
                                                         CA 11-02517

conducted by video conference (see Yu Hui Chen v Chen Li Zhi, 81 AD3d
818, 819; Gartner, 68 AD3d at 815-816; Rogovin, 3 AD3d at 353; see
generally Wygocki v Milford Plaza Hotel, 38 AD3d 237, 237-238;
Hoffman, 260 AD2d at 437). Yu Hui Chen is instructive. There, the
Second Department reversed that part of an order denying the
plaintiff’s cross motion for a protective order pursuant to CPLR 3103
(a) directing that his deposition be conducted by remote electronic
means. The Court stated that, “[w]hile depositions of parties to an
action are generally held in the county where the action is pending .
. ., if a party demonstrates that conducting his or her deposition in
that county would cause undue hardship, the Supreme Court can order
the deposition to be held elsewhere” (Yu Hui Chen, 81 AD3d at 818).
The Court also concluded that the plaintiff therein “demonstrated that
traveling from China to the United States for his deposition would
cause undue hardship” (id. at 819).

     Johnston minimizes the relevance of Yu Hui Chen in its
respondent’s brief by noting that “[n]o facts are provided” in the
memorandum determining that case. Our review of the record in Yu Hui
Chen, however, reveals that the plaintiff was injured in a workplace
accident in April 2007 and commenced a Labor Law and common-law
negligence action in July 2007 seeking damages for injuries he
sustained in that accident. In approximately February 2008, the
plaintiff was arrested by United States Immigration and Customs
Enforcement officers and, from the time of his arrest, was detained at
a government facility and precluded from testifying at either his
Workers’ Compensation Board hearing or at a deposition.

     Without the knowledge of his attorney, the plaintiff in Yu Hui
Chen was subsequently deported, apparently to China. After research
and consultation with attorneys who practiced immigration law in both
New York and China, the plaintiff’s attorney reached the conclusion
that to have the plaintiff return to the United States in the near
future would be overly burdensome and at great financial cost, if not
almost impossible. The plaintiff’s attorney also noted that the
deportation of plaintiff would preclude him from obtaining a visa to
enter the United States until after 10 years from his date of
departure. Moreover, the plaintiff submitted an affidavit confirming
his deportation and indicating that he attempted to secure another
visa to enter the United States to participate in a deposition but was
told by attorneys in China that he could not do so. The plaintiff
added that he could not anticipate when he would be able to return,
but he knew that it would be difficult and beyond his financial means
at that time.

     The financial and legal impediments that the plaintiffs who are
abroad in this case face in returning to this country are strikingly
similar to those at issue in Yu Hui Chen. Plaintiffs are all
impoverished laborers and, except for Perez and potentially Eusemo and
Mejias, are either absolutely or likely without means of obtaining a
visa to re-enter the country. Here, many plaintiffs left the United
States for practical reasons, i.e., the desire to preserve the
workers’ compensation settlements that supported their existence and
to visit family they had not seen in years. Such departures, however,
                                 -8-                              587
                                                            CA 11-02517

are hardly voluntary, and there is no indication that any plaintiff
left to avoid examination before or at trial.

     The cases on which defendants primarily rely, i.e., Rodriguez v
Infinity Ins. Co. and Bristol-Myers Squibb Co. v Yen-Shang B. Chen
([appeal No. 2] 186 AD2d 999), do not compel a different result. In
Rodriguez (283 AD2d at 970), the plaintiffs were seasonal farm workers
from Mexico, and we determined that the “conclusory allegations of
hardship” contained in an attorney affidavit failed to establish that
the plaintiffs would suffer an undue hardship in coming to New York
for depositions. Here, by contrast, the explanation of plaintiffs’
hardship in returning to the United States was comprehensive.
Bristol-Myers Squibb Co. ([appeal No. 2] 186 AD2d 999) involved a
Taiwanese national who unsuccessfully sought to avoid appearing in
Syracuse for a deposition on the ground that the 12,000-mile journey
from Taiwan to Syracuse was unnecessary, inconvenient and expensive.
We concluded that the defendant’s burden was self-imposed because the
defendant chose to travel back to Taiwan from Canada after receiving a
deposition notice (id.), and Bristol-Myers Squibb Co. is
distinguishable inasmuch as the plaintiffs in this matter neither had
the financial means to remain in this country nor have the ability to
return.

                                  B

     We next turn to the issue whether the testimony given at the
depositions of plaintiffs taken abroad may be used at trial. Our
review of that question begins with CPLR 3117 (a) (3), which provides
in relevant part that

          “the deposition of any person may be used by any
          party for any purpose against any other party who
          was present or represented at the taking of the
          deposition or who had the notice required under
          these rules, provided the court finds:

          . . .

          (iv) that the party offering the deposition has
          been unable to procure the attendance of the
          witness by diligent efforts; or

          (v) upon motion or notice, that such exceptional
          circumstances exist as to make its use desirable,
          in the interest of justice and with due regard to
          the importance of presenting the testimony of
          witnesses orally in open court . . . .”

     The determination whether to permit a party to introduce his or
her own deposition into evidence at trial rests within the discretion
of the court and “is reviewable only for ‘clear abuse’ ” (Dailey v
Keith, 306 AD2d 815, 815, affd 1 NY3d 586, quoting Feldsberg v
Nitschke, 49 NY2d 636, 643, rearg denied 50 NY2d 1059; see American
Bank Note Corp. v Daniele, 81 AD3d 500, 501). Taking into account
                                 -9-                           587
                                                         CA 11-02517

“ ‘the law’s preference for oral testimony in open court’ ” (Dailey,
306 AD2d at 815, quoting Siegel, NY Prac § 358, at 587 [3d ed]), as
well as all of the relevant facts and circumstances, we conclude that
there was such an abuse of discretion here.

     We further conclude that plaintiffs met the criteria set forth in
CPLR 3117 (a) (3) (iv), i.e., that plaintiffs appear unable to attend
the trial despite diligent efforts. Although only Gabriel and Mendez,
i.e., the two plaintiffs who have not been fully deposed, sought and
failed to obtain visas to enter the United States, the reasons
underpinning the denial of the visa applications of those plaintiffs
are equally germane to what would be the futile visa applications of
the other plaintiffs who have left the United States. Vasquez,
Jimenez, Lopez, Angel and Mejias have indicated that they have been in
the United States illegally for several years. Eusemo, although not
explicit about the length of his illegal stay, established that he had
been ordered to leave the United States. In view of that evidence, it
is extraordinarily unlikely that those plaintiffs will obtain visas,
and there is little sense in those impoverished plaintiffs engaging in
a futile and, by their standards, onerously expensive visa application
process (see generally Yu Hui Chen, 81 AD3d at 818-819).

     We also conclude that plaintiffs met the criteria set forth in
CPLR 3117 (a) (3) (v), i.e., that exceptional circumstances exist that
make the use of plaintiffs’ depositions in their case-in-chief at
trial desirable. Plaintiffs are all impoverished migrant workers who
were severely injured in the accident. Except for Perez, and
potentially Eusemo and Mejias, each plaintiff has left the country
with no reasonable hope of returning for trial. On the face of this
record, the absence of plaintiffs has nothing to do with evading
confrontation by defendants. Rather, Lopez was expelled from the
country, and the remaining plaintiffs, except for Perez and
potentially Eusemo and Mejias, left to preserve their workers’
compensation settlements and reunite with the families they had not
seen in years.

     Moreover, the equities with respect to this issue weigh in
plaintiffs’ favor. Under these circumstances, to deprive plaintiffs
of the opportunity to testify at trial via video would be tantamount
to depriving them of their day in court. To the extent that
plaintiffs such as those in this case are precluded from testifying,
it could inhibit their ability to pursue legitimate personal injury
claims in cases such as this one.

     Additionally, the use of videotaped testimony at trial is not
unheard of. To the extent that plaintiffs engage in a second round of
videotaped depositions, defendants’ concerns regarding their right to
confront the witnesses against them and their ability to effectively
cross-examine those witnesses would be rendered moot. Moreover,
contrary to the contention of the DeMarco defendants, plaintiffs’
videotaped testimony will not provide the only means of addressing the
grave injury issue in this case. With the exception of Mejias, whose
paraplegia constitutes a grave injury pursuant to Workers’
Compensation Law § 11, the issue whether any of the remaining
                                 -10-                          587
                                                         CA 11-02517

plaintiffs sustained a grave injury appears to turn on the question
whether the facial scarring those plaintiffs sustained is “severe”
within the meaning of that statute. The standard for determining
whether a facial disfigurement is “severe” is whether “a reasonable
person viewing the plaintiff’s face in its altered state would regard
the condition as abhorrently distressing, highly objectionable,
shocking or extremely unsightly” (Fleming v Graham, 10 NY3d 296, 301),
and there is no reason why defendants cannot address that issue
through the photographic evidence appearing in the record.

                                  C

     Contrary to the contention of Johnston and Raytheon, our
determination is consistent with sound public policy. “An alien
unauthorized for employment in the United States is not barred from
seeking to recover . . . in a personal injury action” (Piedrahita v
RGF Dev. Corp., 38 AD3d 741), and Balbuena v IDR Realty LLC (6 NY3d
338) is instructive on this point. In Balbuena (6 NY3d at 359,
quoting Rosa v Partners in Progress, Inc., 152 NH 6, 13, 868 A2d 994,
1000), the Court of Appeals noted that, “in order to further the
laudable purposes of [the federal Immigration Reform and Control Act
of 1986 (8 USC § 1324a et seq.)] and [the state] Labor Law, ‘tort
deterrence principles provide a compelling reason to allow an award of
such damages against a person responsible for an illegal alien’s
employment when that person knew or should have known of that illegal
alien’s status . . . .’ ” The Court in Balbuena further noted that a
different conclusion would have “diminish[ed] the protections afforded
by the Labor Law [and] improvidently reward[ed] employers who
knowingly disregard the employment verification system in defiance of
the primary purposes of federal immigration laws” (id.). Moreover,
the Balbuena Court recognized the plaintiffs’ unauthorized presence in
this country, but it found such “transgression . . . insufficient to
justify denying [them] a portion of the damages to which they [were]
otherwise entitled” (id. at 361).

     Applying the principles of Balbuena here, we conclude that, as a
general matter, allowing plaintiffs to testify from Mexico and
Guatemala via video is generally consistent with sound public policy.
To hold otherwise would undercut tort deterrence principles and
encourage the employment of aliens not lawfully present in the United
States. In so concluding, however, we note that defendants did not
raise the issue whether the use of “fake” documents by Lopez and a
false social security number by Mendez to obtain work in this country
precludes recovery by those plaintiffs (see generally Hoffman Plastic
Compounds, Inc. v National Labor Relations Bd., 535 US 137, 148-151;
Balbuena, 6 NY3d at 354-355). Our inquiry is limited to whether the
public interest is served by allowing illegal aliens who voluntarily
left the country and who are or appear to be precluded from returning
may testify at a deposition or at a trial from a foreign country via
video.

                                  V
                                 -11-                          587
                                                         CA 11-02517

     We now turn to the cross appeals of Raytheon and Johnston, which
raise the issue whether the court erred in denying their respective
cross motions seeking, inter alia, dismissal of the claims of the
majority of the plaintiffs in the actions against them. Pursuant to
22 NYCRR 202.27 (b), a court has the discretion to dismiss the
complaint in the event of a plaintiff’s failure to appear (see Harris
v Bliss, 60 AD3d 437, 438), but here the issue is academic in view of
our determination that the court abused its discretion in denying
those parts of plaintiffs’ motion for a protective order relating to
the taking of certain depositions and trial testimony via video. In
any event, dismissal of the claims of those plaintiffs not presently
in the United States is unwarranted at this juncture. Those
plaintiffs have yet to default, and the issue thus is not ripe for our
review (see generally Murad v Russo, 74 AD3d 1823, 1824, lv dismissed
16 NY3d 732).

                                  VI

     Accordingly, we conclude that the order should be modified 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, i.e., Gabriel and Mendez, to be deposed in
Guatemala via video conference and permitting those plaintiffs who
have returned to Mexico and Guatemala to testify at trial by video.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
