Gatta v. Makita U.S.A., Inc.

244 A.D.2d 457, 664 N.Y.S.2d 352, 1997 N.Y. App. Div. LEXIS 11595

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries sustained while attempting to assemble a table saw, the plaintiff appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated May 28, 1996, which granted the defendants’ motion to compel him to produce the table saw and related tools at his examination before trial and demonstrate how he was using those items when he was allegedly injured.

Ordered that the order is reversed, with costs, and the defendants’ motion is denied.

Prior to the plaintiffs deposition before a stenographer, the defendants moved, inter alia, to compel him to demonstrate how he incurred the injuries alleged in the complaint. The court granted the motion.

The court improvidently exercised its discretion in granting the motion for a demonstration, as the plaintiff can verbally explain, without demonstrating by use of the subject tools, how he was injured. Moreover, the stenographer would not be able to adequately transcribe such a demonstration. Any such attempt would necessarily involve the stenographer’s subjective interpretation and perception of the demonstration. Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.