Melohn v. Beard , 561 N.Y.S.2d 249 ( 1990 )

Order of the Supreme Court, New York County (Irma Santaella, J.), entered on March 19, 1990, which denied plaintiff’s motion for a protective order, unanimously reversed, on the law, the facts and as a matter of discretion, and the motion granted, without costs.

Plaintiff-appellant, in her representative capacity as a trustee, is the owner of a building in which defendant-respondent is a tenant. The action was initially brought seeking a declaration of the landlord’s right of access to install new windows. The action has been discontinued with respect to all tenants other than defendant-respondent Henry N. Beard, who has asserted numerous counterclaims.

Defendant noticed plaintiffs deposition and she then sought a protective order on the ground that she had no knowledge relevant to defendant’s counterclaims, and that her managing agent should be deposed in her stead. The court denied the motion and the deposition proceeded. After an hour and a half of questioning, the deposition was discontinued because plaintiff complained of an attack of high blood pressure and colitis. The record contains unrefuted medical evidence of her condition.

Under the circumstances, the motion court improvidently exercised its discretion in denying the protective order, especially inasmuch as plaintiff had offered to produce a nonparty witness with knowledge, and the testimony elicited from plaintiff was of no evidentiary value. (CPLR 3103; see, Verini v Bochetto, 49 AD2d 752.) Concur—Murphy, P. J., Sullivan, Milonas and Ellerin, JJ.