Almy v. Pappas

Appellate Division of the Supreme Court of New York

Almy v. Pappas

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 1987

StatusPublished

Cited by2 cases

This text of 134 A.D.2d 946 (Almy v. Pappas) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Almy v. Pappas, 134 A.D.2d 946, 522 N.Y.S.2d 81, 1987 N.Y. App. Div. LEXIS 51151 (N.Y. Ct. App. 1987).

Pincite

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, [947]*947who 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.

Free access — add to your briefcase to read the full text and ask questions with AI

— 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, [947]*947who 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.

Cite This Page — Counsel Stack

Bluebook (online)

134 A.D.2d 946, 522 N.Y.S.2d 81, 1987 N.Y. App. Div. LEXIS 51151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/almy-v-pappas-nyappdiv-1987.

Opinion

Related

Cite This Page — Counsel Stack