Troutman v. Washburn

—Order unanimously affirmed with costs. Memorandum: Plaintiff commenced this action seeking partition of certain real property nominally owned by plaintiff and defendant by virtue of a May 15, 1989 deed. Plaintiff appeals from two orders, one denying plaintiff’s motion for summary judgment, and one excluding plaintiff from a pretrial examination of defendant.

There are triable questions of fact warranting the denial of plaintiff’s motion for summary judgment. Defendant adduced proof tending to show that he may have lacked capacity to enter into the transaction as a result of a recent stroke…