Muscoreil v. Pool Mart, Inc.

107 A.D.2d 1025, 486 N.Y.S.2d 518, 1985 N.Y. App. Div. LEXIS 42837

Opinion

Order unanimously modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: Plaintiffs appeal from an order directing the infant plaintiff “to appear upon notice for oral examination before trial which examination shall not be under oath.” There is no question that the testimony of the eight-year-old plaintiff, if he is competent, would properly be discoverable (CPLR 3101, subd [a]). Special Term erred, however, in directing that the examination not be under oath. It should have ordered a preliminary examination to determine the competency of the infant (see Tuohy v Gaudio, 87 AD2d 610, 611; Rembert v Lipshutz, 86 AD2d 750; Jensen v Shady Pines, 32 AD2d 648). Accordingly, we modify the order to direct that the examination be under oath provided that the infant is first found competent by the court in a preliminary examination (CPLR 3113, subd [b]). (Appeal from order of Supreme Court, Erie County, Ricotta, J. — examination before trial.) Present — Hancock, Jr., J. P., Denman, Boomer, Green and O’Donnell, JJ.