398 N.E.2d 517 (N.Y. 1979)
Plaintiff filed a wrongful death action against defendant and others. Plaintiff appealed from an order of the trial court that directed plaintiff to appear for a further oral examination to answer questions concerning conversations with the decedent pertaining to his seeing a psychiatrist and concerning conversations between plaintiff and decedent's psychiatrist occurring after decedent's death.
- The court held that plaintiff could not refuse to testify concerning her husband's mental state by claiming spousal privilege or physician-patient privilege.
- The appellate court affirmed. Plaintiff appealed.
- The reviewing court held that since decedent himself could not have prevented disclosure of the information sought had he survived, plaintiff, as his personal representative, could not do so in an action brought underN.Y. Est. Powers & Trusts Law § 5-4.1.
- The court found that the circumstances of decedent's death precluded the assertion of the privileges.
The order directing plaintiff to appear for a further oral examination was affirmed because plaintiff could not assert privileges that decedent would not have been able to assert had he survived.
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