James Smith, et al., appellants,
Cardella Trucking Co., Inc., et al., respondents.
2013–03435 (Index No. 32997/07)
Supreme Court, Appellate Division, Second Department, New York.
January 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.
WILLIAM F. MASTRO, J.P. SHERI S. ROMAN ROBERT J. MILLER SYLVIA O. HINDS–RADIX, JJ.
SUBMITTED—NOVEMBER 26, 2013
DECISION & ORDER
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 NY3d 843, 845; Colantonio v. Mercy Med. Ctr., 102 AD3d 649, 650) in directing the injured plaintiff to submit to an examination by a 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; Scotto v M.D. Carlisle Constr. Corp., 18 AD3d 459, 460). 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 AD3d 922; Jones v. Grand Opal Constr. Corp., 64 AD3d 543; Barbosa v. Capolarello, 52 AD3d 629).
MASTRO, J.P., ROMAN, MILLER and HINDS–RADIX, JJ., concur.
Clerk of the Court