DeGennaro v. Robbie Robinson Textiles, Inc.

205 A.D.2d 659, 613 N.Y.S.2d 426

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 1994
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roberto, J.), dated November 20, 1992, which denied their motion for a protective order precluding the defendants from compelling the nonparty witness Ermina DeGennaro to engage in a "touch and feel” demonstration to determine whether she can identify the fabric which ignited and caused the accident in question from various fabrics.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for a protective order is granted, and the defendants are precluded from compelling the nonparty witness Ermina DeGennaro to engage in a "touch and feel” demonstration.

The demonstration which the defendant intends to employ at the witness’s examination before trial is clearly not intended to reveal any evidence which is material and necessary to the defense of this action. Rather, its apparent purpose is to create evidence with which to discredit the witness’s identification of the fabric in question as that which she had used on a previous occasion to make nightclothes for the infant plaintiff. The demonstration in question is therefore unrelated to discovery matters (see, e.g., Jonassen v A.M.F., Inc., 104 AD2d 484). Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.