SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK

PRESENT: HON. DANIEL MARTIN Acting Supreme Court Justice

TRIAL/IAS, PART 39 MELISSA IELPI. NASSAU COUNTY

Plaintiff(s). Index No.: 015455/99 Motion Seq. No.: 009 - against -

RICARDO J. LOPEZ, , INC., AND , INC., RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., , DISNEY ENTERPRISES, INC. and .

Defendant(s).

have hem. . . Papers Numbered Notice of Motion and Affidavits Annexed X Order to Show Cause and Affidavits Annexed Answering Affidavits X Replying Affidavits X

Upon reading the papers submitted and due deliberation having been had herein, plaintiffs motion for an open commission to take the deposition of two non-party witnesses without the State of New York is hereby granted.

Plaintiff seeks herein open commissions to take the deposition of non-party witnesses Richard Felsenstein who resides in Virginia and Jewel Bailey who resides in North Carolina pursuant to CPLR 3108. Where the deposition of the out of state non-party witness “...could, at the very least lead to the disclosure of evidence material and necessary to the prosecution of the action, the plaintiff’s motion for an open commission pursuant to CPLR 3108 should [be] granted (citations omitted).” Mifsud v. Citv of New York, 208 A.D. 2d 701,702 (2nd Dep’t 1994).

Plaintiff has demonstrated to the court that the deposition of the two witnesses could, at the very least, lead to disclosure of evidence which is material to its causes of action for the violation of Labor Law 9740 and Executive Law $296 and for breach of contract. Defendants have failed to demonstrate to the court how these witnesses would not possess such information which would lead to material discovery.

The court rejects that portion of defendants’ opposition in which defendants assert that plaintiff should be required to pay defendants’ attorneys’ expenses to attend the out of state depositions. Nowhere in the applicable statute is there authority for such relief and further, defendants have failed to properly cross-move for such relief.

Accordingly, it is hereby ordered that open commissions issue out of this court directed to Cranfill, Sumner & Hartzog, LLP at Raleigh, North Carolina to examine under oath Jewel1 Bailey and to Johnson & Roche at McLean, Virginia to examine under oath Richard Felsenstein. It is further ordered that all counsel herein are authorized to attend before the respective commissioners and to orally examine and cross-examine the witnesses.

It is further ordered that ten (10) days notice of the time and place of the examination be given to the attorneys for the defendants in accordance with the provisions of CPLR 2103.

So ordered. I

Dated: January 7,2002

JAN 09 2002 b

Page -2-