Almy v. Pappas

134 A.D.2d 946, 522 N.Y.S.2d 81, 1987 N.Y. App. Div. LEXIS 51151

Opinion

— Order unanimously reversed on the law without costs and defendant’s motion granted. Memorandum: Special Term abused its discretion in denying defendant’s motion to compel infant plaintiff to appear for an examination before trial and in granting plaintiffs’ cross motion for a protective order pursuant to CPLR 3103. There is no question that the testimony of the infant plaintiff, who was seven years old at the time her testimony was sought, would properly be discoverable if she is competent (CPLR 3101 [a]). Defendant has exhausted other available sources of information and it appears that the infant plaintiff is the only person with personal knowledge of the facts (see, Rembert v Lipshutz, 86 AD2d 750). However, the court should examine the infant plaintiff preliminarily and determine if she possesses sufficient capacity and is competent to testify, and, if so, whether the examination should be in the presence of a Judge (Muscoreil v Pool Mart, 107 AD2d 1025, 1026; Tuohy v Guadio, 87 AD2d 610, 611; Rembert v Lipshutz, supra). (Appeal from order of Supreme Court, Monroe County, Doyle, J. — discovery.) Present — Dillon, P. J., Callahan, Doerr, Boomer and Davis, JJ.