Opinion
2149
November 13, 2003.
Order, Supreme Court, New York County (Edward Lehner, J.), entered December 27, 2002, which denied defendant Kamel Wazne's motion for an order directing Jerrold Ross, as Guardian of the Person and Property of Lily McKinley, to produce his ward for an examination before trial in this action, unanimously affirmed, with costs.
Alexandra Vandoros, for plaintiff-respondent.
Preston A. Leschins, for defendant-appellant.
Before: Tom, J.P., Saxe, Rosenberger, Williams, Gonzalez, JJ.
While incapacity for the purpose of guardianship is not dispositive as to capacity to testify in a legal proceeding (see Mental Hygiene Law § 81.29[b]; Barker v. Washburn, 200 N.Y. 280, 282-283), the IAS court had ample, additional information from which to conclude that Dr. McKinley lacks the requisite capacity to testify either at an examination before trial or at trial (see Brown v. Ristich, 36 N.Y.2d 183, 188-189). Her guardian's assertion that her memory of even recent events is severely impaired is supported by the affirmation of a geriatric psychiatrist and by the transcript of a hearing during which she could not recall that the previous witness was her home attendant, leading the court to note that her condition had "deteriorated significantly" since her first appearance.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.