Rembert v. Lipshutz

Order unanimously affirmed, with costs. Memorandum: Defendant appeals from an order of protection preventing him from examining the infant plaintiff (now six years old) before trial or obtaining disclosure of the name and address of her natural father. Examination before trial of plaintiff mother has been scheduled. The action seeks damages for personal and psychiatric injuries sustained by the infant as a result of defendant’s acts of sexual abuse. Defendant has pleaded guilty to a criminal charge of oral sodomy and by his answer to the complaint admits that act. The case is thus one for the assessment of damages and defendant seeks to discover the infant plaintiff’s home environment and her prior psychiatric and medical history insofar as they relate to that issue. These are proper subjects for inquiry but until defendant has determined whether paternity has been established or acknowledged, he is not entitled to the name of the alleged natural father or his address. Nor is he entitled to depose the infant until he has exhausted other available sources of information concerning her home environment and prior medical condition and then not before a Judge is satisfied that he has done so, the Judge has examined the infant preliminarily and determined that she is competent to testify, and if so whether examination should be in the presence of a Judge. Those proceedings, if promptly pursued, may properly require a stay of the trial but that is a matter to be addressed to the trial court, and the previous stay of this court pending argument of the appeal is vacated. (Appeal from order of Supreme Court, Monroe County, Pine, J. — protective order.) Present — Simons, J. P., Hancock, Jr., Doerr, Denman and Schnepp, JJ.