In New York state, there is no CPLR section regarding the admissibility of testimony of a child witness. Instead, civil cases have adopted the standard created in criminal cases. The rule originates in NY CLS CPL §60.20 which creates a presumption that witnesses under nine-years of age are incompetent to testify. (Although most courts follow the rule that only those under nine are presumed incompetent, two judges in Supreme Court, Kings County—Justice Francois Rivera and Justice Martin Solomon—apply this presumption to anyone 17 years of age or younger.)
This presumption must be rebutted before an infant can give sworn deposition testimony or before an infant can testify at trial. It is adequately rebutted when a trial court conducts a swearability hearing, a voir dire, of the infant and determines that the witness is competent to testify.
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