Plaintiff Denied Court's Commission to Conduct Non-party Witness Deposition of Eyewitness Living in Ecuador

Case: Sanchez v. Metro Builders Corp.

Court: New York Supreme Court, Dutchess County

Date: 7/20/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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Facts: In 2011 this plaintiff had an accident while working at a construction site in upstate New York. He has amnesia about the event. He only knows what happened from talking to a witness, his uncle. His uncle moved from New Jersey to Ecuador. The injured plaintiff's lawyer tells the Court that the uncle can't get a visa and so can't get back to New York. Unfortunately, the lawyer puts no evidence of this in his papers.

Plaintiff's lawyer asks that the judge issue a "commission," to force the uncle's non-party witness deposition to be held in Ecuador. Planitiff's lawyer would also like to depose the unce in Ecuador while staying in New York, by a videotaped deposirtion.

Needless to say, the defense attorneys don't want to travel to Ecuador for a deposition and oppose the motion. They also seek to block having the uncle's deposition conducted in Ecuador, from New York, by videotape. This is a strategy designed to beatthe plaintiff, because if the plaintiff can't preserve the uncle's testimony and if the uncle can't get into New York for trial of this case, the plaintiff can't say how his accident happened and must lose his case.

Held: Plaintiff's request for a commission for a non-party witness deposition of his uncle in Ecuador is denied. Plaintiff filed to prove that the uncle couldn't or wouldn't come to New York for a deposition. Likewise, plaintiff has failed to show a reason for videotaping his uncle's non-party witness deposition between New York and Ecuador.

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