Stern v. Taylor

65 A.D.2d 790, 410 N.Y.S.2d 319, 1978 N.Y. App. Div. LEXIS 13654

Opinion

—In an action, inter alia, for specific performance of an alleged contract for the sale of real property, plaintiffs appeal from an order of the Supreme Court, Westchester County, entered August 2, 1978, which granted defendants’ motion for a protective order vacating a notice to depose the defendant Ines E. Taylor. Order reversed, without costs or disbursements, and action remanded to Special Term for further proceedings consistent herewith. It was an abuse of discretion for Special Term to vacate plaintiffs’ notice of deposition on the basis of an unsworn letter from a doctor and the affidavits of defendant Roberto S. Taylor and his attorney. Defendants offered to have a court-appointed neurologist examine Mrs. Taylor at their expense and Special Term should have ordered such an examination prior to deciding defendants’ motion. Accordingly, on remand, Special Term shall appoint a physician, at defendants’ expense, to examine Mrs. Taylor for the purpose of determining whether her participation in an oral deposition would be detrimental to her health or to the course of the rehabilitative treatment she has been receiving. Titone, J. P., Shapiro, Cohalan and Margett, JJ., concur.