Troutman v. Washburn , 602 N.Y.S.2d 476 ( 1993 )

—Order unanimously affirmed with costs. Memorandum: Plaintiff commenced this action seeking partition of certain real property nominally owned by plaintiff and defendant by virtue of a May 15, 1989 deed. Plaintiff appeals from two orders, one denying plaintiff’s motion for summary judgment, and one excluding plaintiff from a pretrial examination of defendant.

There are triable questions of fact warranting the denial of plaintiff’s motion for summary judgment. Defendant adduced proof tending to show that he may have lacked capacity to enter into the transaction as a result of a recent stroke and severe depression. Additionally, defendant’s submissions tend to show that defendant may have executed the deed under duress as a result of plaintiff’s attacks and threats of violence.

The court did not err in excluding plaintiff from defendant’s EBT. Under appropriate circumstances, a court may exercise its discretion to exclude a party from a deposition (see, Matter of Czachor, 137 AD2d 915, 916; Swiers v P & C Food Mkts., 95 AD2d 881, 882; see also, Matter of Diane B., 96 Misc 2d 798, 801; Schwartz v Marien, 65 Misc 2d 811, 813, affd 36 AD2d 1027). Defendant submitted the affidavit of his counsellor, a psychiatric social worker, who averred that defendant is physically and psychologically intimidated by plaintiff and cannot proceed when plaintiff is present in the room. Moreover, although the court’s order excluded plaintiff from the room during defendant’s deposition, it did not exclude him from participation and consultation with his counsel in relation thereto. The order provides that plaintiff is to be allowed to stand by, to have audio access to the questioning, and to consult with his counsel as often as necessary. Thus, plaintiff will not sustain undue prejudice or inconvenience as a result of the court’s order. (Appeal from Order of Supreme Court, Orleans County, Punch, J.—Discovery.) Present—Denman, P. J., Balio, Lawton, Doerr and Boehm, JJ.