The Court has considered the following papers on plaintiff's motion pursuant to CPLR §3124: the Notice of Motion dated September 29, 2025 (NY St Cts Filing [NYSCEF] Doc No. 16); the Affirmation in Support of John Riso, Esq., dated September 29, 2025 (NY St Cts Filing [NYSCEF] Doc No. 17); Exhibit A, the prior August 5, 2025 Short Form Order of this Court (NY St Cts Filing [NYSCEF] Doc No. 19); the Affirmation in Opposition of Scott A. Koltun, Esq., dated October 6, 2025 (NY St Cts Filing [NYSCEF] Doc No. 21); and the Affirmation of Seshadri Das, M.D., including the accompanying medical letter dated August 18, 2025 (NY St Cts Filing [NYSCEF] Doc No. 22). Reply was waived on the record on November 19, 2025.

This action arises from an incident alleged to have occurred on November 24, 2023, at approximately 10:20 a.m., at the premises located at 242 Vanderbilt Avenue, Staten Island, New York, where plaintiff was employed as a home aide caretaker for defendant Helena B. Wreh. Plaintiff contends that she slipped and fell in the basement due to "flooded, wet, slippery, slimy, moldy" tile flooring and steps, allegedly caused by leaking, broken, and rusty pipes dripping water onto the floor, and that the stairs lacked proper banisters, resulting in "severe, multiple and permanent injuries." (NY St Cts Filing [NYSCEF] Doc No. 17 at ¶3).

On August 5, 2025, this Court issued a Short Form Order directing that defendant Helena B. Wreh was to appear for a deposition or, in the alternative, defendants were to provide an affirmation from a medical doctor attesting to her competency to appear within 45 days, Exhibit A, Short Form Order. (NY St Cts Filing [NYSCEF] Doc No. 19). Defendants thereafter provided a letter executed by Seshadri Das, M.D., asserting that Ms. Wreh suffers from ongoing cognitive impairment and is medically unfit to participate in legal testimony. (NY St Cts Filing [NYSCEF] Doc No. 22). Plaintiff rejected the letter as insufficient due to lack of proper evidentiary form and expressed continued interest in conducting Ms. Wreh's deposition.

On September 17, 2025, the matter was conferenced with the Court, and plaintiff was granted permission to file the present motion to compel. Plaintiff argues that adults are presumptively competent witnesses and seeks an order compelling defendant Wreh to appear for an Examination Before Trial.

Defendants oppose the motion, relying heavily on the affirmation of Dr. Das, who avers, within a reasonable degree of medical certainty, that Ms. Wreh is not capable of participating in any form of court proceeding, including a deposition, due to a documented history of multiple transient ischemic attacks, resulting in vascular cognitive impairment, memory deficits, and significant difficulty with recall. (see id). Dr. Das further states that her condition renders her medically unfit to provide reliable testimony and that participation in a deposition would risk confusion, miscommunication, and distress. (see id).

Defendants also cite the same legal authority raised by plaintiff, Matter of Brown v. Ristich, (36 NY2d 183 [1975]), emphasizing the portion indicating that competency may be challenged, and that the determination lies within the sound discretion of the hearing officer, who may consider evidence bearing on the witness's mental capacity.

Plaintiff moves pursuant to CPLR § 3124, which authorizes the Court to compel disclosure where a party has failed to respond to a demand. Plaintiff urges that the longstanding presumption of adult competency supports permitting the deposition of Ms. Wreh, contending that any person over the age of nine is competent to testify unless the Court rules otherwise. Plaintiff relies on the principle cited from Matter of Brown v. Ristich, which states that "all adults are presumed competent to testify."

However, Brown also provides expressly, and defendants correctly highlight, that an adversary may put competency in issue, and in such a circumstance, the determination of competency "is addressed solely to the discretion of the hearing officer," who may consider evidence from any person capable of establishing the witness's mental capacity. In this matter, the Court is presented not with mere conjecture or generalized claims but with a detailed [*3]affirmation from a licensed physician, Dr. Seshadri Das, whose statements are rendered within a reasonable degree of medical certainty.

The affirmation and accompanying letter set forth that Ms. Wreh has a documented history of multiple TIAs, resulting in significant and clinically evaluated cognitive impairment, particularly affecting memory retention and recall. (NY St Cts Filing [NYSCEF] Doc No. 22). Dr. Das opines unequivocally that Ms. Wreh is not capable of participating in any legal proceeding as a witness and is unable to provide reliable testimony. (see id). The physician expressly states that her participation would not yield dependable testimony and would jeopardize her well-being. (see id).

This medical evidence directly addresses the criteria articulated in Brown: whether the witness can observe, recall, and narrate truthfully; whether impressions are retained; and whether the witness can understand the nature of questions and respond coherently. The physician's description of Ms. Wreh's deficits, particularly in memory retention, recall, and cognitive processing, indicates that these essential capacities are compromised.

Plaintiff offers no competing medical evidence contradicting Dr. Das's assessment. Nor does plaintiff identify any alternative method by which Ms. Wreh's competency could be meaningfully tested, other than the deposition itself, which Dr. Das specifically opines she is medically unfit to undergo.

Given the Court's prior order permitting defendants either to produce Ms. Wreh or provide a physician's affirmation regarding competency and given defendants' compliance with the latter option, the Court must weigh the statutory purpose of disclosure against the demonstrated incapacity of the witness. Depositions are intended to secure reliable testimony, not to compel participation by individuals medically unable to comprehend or respond appropriately.

Under the circumstances presented, supported by unrefuted medical evidence, the Court finds that compelling the deposition of Ms. Wreh would be inconsistent with the principles articulated in Brown, inappropriate under CPLR § 3124, and potentially harmful to the witness.

Accordingly, upon review of all papers submitted and for the reasons stated above, it is hereby

ORDERED, that plaintiff's motion pursuant to CPLR §3124 to compel the deposition of defendant Helena B. Wreh is DENIED in its entirety; and it is further

ORDERED, that defendants' submission of the medical affirmation of Seshadri Das, M.D. shall be deemed sufficient compliance with the Court's August 5, 2025, Short Form Order; and it is further

ORDERED, that the parties shall proceed with all other outstanding discovery consistent with the conference Orders of this Court.