
    Michelle Sessa, an Infant, by Her Mother and Natural Guardian, Sarah Sessa, et al., Appellants, v City of New York et al., Respondents. (And a Third-Party Action.)
   —In an action to recover damages for personal injuries, etc., plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Shaw, J.), entered June 4, 1984, as granted those branches of respondents’ cross motions as sought an order precluding plaintiff Michelle Sessa from testifying at trial.

Order reversed, insofar as appealed from, on the law, with costs, and the aforenoted branches of respondents’ cross motions denied, without prejudice to applications by the respondents in the Supreme Court, Kings County, for additional discovery with respect to plaintiff Michelle Sessa’s potential testimony, including, if they be so advised, an examination before trial of Michelle Sessa.

Trial Term erred in precluding plaintiff Michelle Sessa from testifying at trial merely because she was deemed incompetent to offer sworn testimony at an examination before trial in 1977. In precluding Sessa, Trial Term reasoned that since Sessa had previously been ruled incompetent as a witness, she should not be permitted to offer testimony at trial. We disagree. The record indicates that in 1977 Sessa was ruled incompetent because, at age nine, she was unable to understand the nature of an oath and therefore could not be sworn. There is no indication in the record, however, that Sessa now suffers from any disability which must result in the preclusion of her testimony at trial.

Moreover, on this record, we decline to affirm Trial Term’s preclusion of Sessa’s testimony based upon the alleged dilatory tactics complained of by respondents. Mollen, P. J., Thompson, Bracken and O’Connor, JJ., concur.  