Smith v. Cardella Trucking Co.

Appellate Division of the Supreme Court of New York

Smith v. Cardella Trucking Co.

113 A.D.3d 750, 978 N.Y.2d 888

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 22, 2014

StatusPublished

Cited by1 cases

This text of 113 A.D.3d 750 (Smith v. Cardella Trucking Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Cardella Trucking Co., 113 A.D.3d 750, 978 N.Y.2d 888 (N.Y. Ct. App. 2014).

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Opinion

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 [2008]; Colantonio v Mercy Med. Ctr., 102 AD3d 649, 650 [2013]) 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 NY2d 952, 954-955 [1998]; Scotto v M.D. Carlisle Constr. Corp., 18 AD3d 459, 460 [2005]). 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 [2010]; Jones v Grand Opal Constr. Corp., 64 AD3d 543 [2009]; Barbosa v Capolarello, 52 AD3d 629 [2008]). Mastro, J.P., Roman, Miller and Hinds-Radix, JJ., concur.

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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 [2008]; Colantonio v Mercy Med. Ctr., 102 AD3d 649, 650 [2013]) 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 NY2d 952, 954-955 [1998]; Scotto v M.D. Carlisle Constr. Corp., 18 AD3d 459, 460 [2005]). 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 [2010]; Jones v Grand Opal Constr. Corp., 64 AD3d 543 [2009]; Barbosa v Capolarello, 52 AD3d 629 [2008]). Mastro, J.P., Roman, Miller and Hinds-Radix, JJ., concur.

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Bluebook (online)

113 A.D.3d 750, 978 N.Y.2d 888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-cardella-trucking-co-nyappdiv-2014.

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