Ceron v. Belilovsky

92 A.D.3d 714, 938 N.Y.2d 607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2012
• Status: Published

Opinion

Under the particular circumstances of this case, in which, inter alia, the plaintiffs expert psychologist opined that requiring her infant daughter to testify under oath would be detrimental to her health, the Supreme Court providently exercised its discretion in granting the plaintiffs motion for a protective order pursuant to CPLR 3103 (a) to the extent of staying the deposition of the plaintiffs infant daughter (hereinafter the infant) and directing the defendants to submit their proposed written interrogatories to the plaintiffs counsel (see Button v Guererri, 298 AD2d 947 [2002]; Verini v Bochetto, 49 AD2d 752 [1975]). However, the Supreme Court improperly delegated its authority to determine the scope of discovery to a mental health professional. Accordingly, the infant must submit responses to the interrogatories, without prejudice to the defendants moving, if they be so advised, to compel the deposition of the infant upon receipt and review of the responses to the interrogatories, and without prejudice to the plaintiff moving for an additional protective order, if she be so advised (see Button v Guererri, 298 AD2d 947 [2002]).

The issue of whether the protective order improperly reverses the priority of depositions, as contended by the defendants, cannot be determined, since the record is not clear as to whether the defendants in fact had priority of depositions in the first instance (see CPLR 3106 [a]; Business Envelope Mfrs. v Williams, 40 AD2d 597 [1972]). Dillon, J.E, Florio, Chambers and Roman, JJ., concur.