Opinion
September 10, 1981
Appeal from an order of the Supreme Court at Special Term (Bryant, J.), entered December 23, 1980 in Tompkins County, which granted a motion by plaintiff for a protective order vacating defendant's notice to take a deposition upon oral examination with leave for defendant to demand a bill of particulars. After commencement of her action for divorce against defendant, plaintiff was permitted to serve a supplemental complaint charging defendant with adultery. Defendant noticed an examination of plaintiff on that allegation. Plaintiff's motion for a protective order, prohibiting defendant from taking her deposition on that issue, was properly granted by Special Term. As his wife, plaintiff is not competent to testify on the issue of defendant's adultery (CPLR 4502; see Dunlap v. Dunlap, 34 A.D.2d 889). Further, we find no abuse of discretion by Special Term in granting the protective order. Order affirmed, with costs. Mahoney, P.J., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.