Opinion
October 6, 1988
Appeal from the Supreme Court, Bronx County (Harold Tompkins, J.).
The testimony of the infant plaintiff sought by defendants-appellants in this wrongful death action was both material and relevant to the issues in the case. There was no finding that the infant plaintiff, who was 15 years old at the time of his mother's death, was incompetent, nor is he deemed incompetent as a matter of law (Tuohy v Gaudio, 87 A.D.2d 610, 611 [2d Dept 1982]; Lester v Fischbein, 8 A.D.2d 618 [2d Dept 1959]). Information regarding his relationship with his mother, the material circumstances of their life, and facts concerning the decedent's history and earning capacity, as well as the infant's own employment are relevant in determining the degree to which the infant was dependent on the decedent and the extent of the material loss. The infant's employment and school records are likewise relevant and were properly sought by appellants (Maglaras v Mt. Sinai Hosp., 107 A.D.2d 605, 606 [1st Dept 1985]).
Plaintiff-respondent failed to show that a protective order was necessary to prevent abuses within the ambit of CPLR 3103 (a). It was therefore error for Supreme Court to have granted the motion for a protective order vacating the demand for authorization and the notice to take the deposition of the infant plaintiff.
Concur — Sandler, J.P., Ross, Kassal, Rosenberger and Wallach, JJ.