Diaz v Elrac, Inc.

Diaz v ELRAC, Inc. 2007 NY Slip Op 04545 [40 AD3d 515] May 29, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

David Diaz, Respondent,
v
ELRAC, Inc., et al., Defendants, and Marco C. Donofrio, Appellant.

—[*1] Brand Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.

Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains (Kevin D. O'Dell of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about December 2, 2005, which denied defendant's motion to compel plaintiff to be examined by defendant's vocational rehabilitation expert, unanimously reversed, on the facts, without costs, and the motion granted. Appeal from order, same court and Justice, entered March 14, 2006, which denied defendant's motion to renew the above order, unanimously dismissed, without costs, as academic in light of the foregoing.

Plaintiff did not serve the report of his vocational rehabilitation expert, who personally examined plaintiff and criticized defendant's expert for not having done so, until after the note of issue had been filed. Furthermore, the court reopened discovery and postponed the trial date when plaintiff served a supplemental bill of particulars on the day the trial was to have started. Thus, an examination by defendant's vocational rehabilitation expert, which was otherwise warranted here as a matter of fairness (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 955 [1998]), would not have delayed the trial. In these circumstances, the denial of [*2]the motion was an improvident exercise of discretion. We note that the case still has not been tried. Concur—Friedman, J.P., Marlow, Nardelli, Buckley and Kavanagh, JJ.