DIAZ v. Marco C. Donofrio, Defendant-Appellant.

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

David DIAZ, Plaintiff-Respondent, v. ELRAC, INC., et al., Defendants, Marco C. Donofrio, Defendant-Appellant.

Decided: May 29, 2007

FRIEDMAN, J.P., MARLOW, NARDELLI, BUCKLEY, KAVANAGH, JJ. 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 N.Y.2d 952, 955, 683 N.Y.S.2d 156, 705 N.E.2d 1197 [1998] ), would not have delayed the trial.   In these circumstances, the denial of the motion was an improvident exercise of discretion.   We note that the case still has not been tried.