Smith v. Cardella Trucking Co.

• Citation: 2014 N.Y. Slip Op. 00340,978 N.Y.S.2d 888,113 A.D.3d 750
• Parties: James SMITH, et al., appellants, v. CARDELLA TRUCKING CO., INC., et al., respondents.
• Decision Date: 22 January 2014
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 750
978 N.Y.S.2d 888
2014 N.Y. Slip Op. 00340

James SMITH, et al., appellants,
v.
CARDELLA TRUCKING CO., INC., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 22, 2014.

Blank & Star, PLLC, Brooklyn, N.Y. (Helene Blank and Scott Star of counsel), for appellants.

Clausen Miller P.C., New York, N.Y. (Carl M. Perri, Anthony D. Grande, and Melinda S. Kollross of counsel), for respondent Cardella Trucking Co., Inc.

Nicoletti Hornig & Sweeney, New York, N.Y. (Val Wamser of counsel), for respondent Pierpont Morgan Library.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Sherman, J.), dated October 10, 2012, which granted the motion of the defendant Cardella Trucking Co., Inc., joined in by the defendant Pierpont Morgan Library, to compel the injured plaintiff to submit to an examination by a vocational rehabilitation expert.

ORDERED that the order is affirmed, with costs.

Contrary to the contention of the plaintiffs, the Supreme Court providently exercised its discretion ( see Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732; Colantonio v. Mercy Med. Ctr., 102 A.D.3d 649, 650, 958 N.Y.S.2d 177) in directing the injured plaintiff to submit to an examination by a

[978 N.Y.S.2d 889]

vocational rehabilitation expert. The record demonstrates that the plaintiffs placed the injured plaintiff's ability to engage in future employment in issue, thereby making an evaluation by a vocational rehabilitation expert appropriate ( see Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954–955, 683 N.Y.S.2d 156, 705 N.E.2d 1197; Scotto v M.D. Carlisle Constr. Corp., 18 A.D.3d 459, 460, 797 N.Y.S.2d 96). Additionally, the plaintiffs were not prejudiced by the order directing the examination, since discovery was still ongoing in the action and the note of issue had not been filed ( see generally Spano v. Omni Eng'g, LLC, 69 A.D.3d 922, 893 N.Y.S.2d 259; Jones v. Grand Opal Constr. Corp., 64 A.D.3d 543, 883 N.Y.S.2d 253; Barbosa v. Capolarello, 52 A.D.3d 629, 858 N.Y.S.2d 913).

MASTRO, J.P., ROMAN, MILLER and HINDS–RADIX, JJ., concur.