Ross v. Wazne

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. While incapacity for the purpose of guardianship is not dis-positive as to capacity to testify in a legal proceeding (see Mental Hygiene Law § 81.29 [b]; Barker v Washburn, 200 NY 280, 282-283 [1911]), 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 NY2d 183, 188-189 [1975]). 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. Concur—Tom, J.P., Saxe, Rosenberger, Williams and Gonzalez, JJ.