ALOISE v. SAULO (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Bayne, J.), entered November 16, 2007, as granted the motion of the defendant Alfred Saulo to compel him to produce a certain nail gun at his videotaped deposition.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in requiring the plaintiff to produce, at a further deposition, the nail gun that allegedly caused his injuries (see CPLR 3111), as the record demonstrates that the issue of how the nail gun was used during the accident is “material and necessary” to the defense of the action (CPLR 3101[a];  Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430).   The Supreme Court also properly permitted the deposition to be videotaped upon service of the notice required by the Uniform Rules for the New York State Trial Courts (see 22 NYCRR 202.15[c] ), which the plaintiff conceded, at the oral argument of the motion, was properly effected.