113 A.D.3d 750 (2014)

978 N.Y.S.2d 888

2014 NY Slip Op 340

JAMES SMITH et al., Appellants, v. CARDELLA TRUCKING CO., INC., et al., Respondents.

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

Decided January 22, 2014.

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 [2008]; Colantonio v Mercy Med. Ctr., 102 A.D.3d 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 N.Y.2d 952, 954-955 [1998]; Scotto v M.D. Carlisle Constr. Corp., 18 A.D.3d 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 A.D.3d 922 [2010]; Jones v Grand Opal Constr. Corp., 64 A.D.3d 543 [2009]; Barbosa v Capolarello, 52 A.D.3d 629 [2008]).


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