                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 7, 2016                   521261
________________________________

DONALD C. HAYES et al.,
                    Respondents,
      v
                                            MEMORANDUM AND ORDER
BETTE & CRING, LLC,
                      Appellant,
                      et al.,
                      Defendants.

(And a Third-Party Action.)
________________________________


Calendar Date:   November 16, 2015

Before:   McCarthy, J.P., Egan Jr., Rose, Lynch and Clark, JJ.

                             __________


      Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany
(Jennifer L. McGrath of counsel), for appellant.

      The Carey Firm, LLC, Grand Island (Dale J. Bauman of
counsel), for respondents.

                             __________


Lynch, J.

      Appeal from that part of an order of the Supreme Court
(Reynolds Fitzgerald, J.), entered April 13, 2015 in Broome
County, which denied a motion by defendant Bette & Cring, LLC to
compel plaintiff Donald C. Hayes to submit to an examination by a
vocational rehabilitation expert.

      Plaintiff Donald C. Hayes and his spouse, derivatively,
commenced this negligence and Labor Law §§ 200, 240 (1) and 241
(6) action to recover for damages resulting from injuries that
Hayes sustained when he allegedly fell while working as a roofer
                              -2-                521261

on a construction project. Following joinder of issue and prior
to plaintiffs filing a note of issue, defendant Bette & Cring,
LLC (hereinafter defendant) moved to compel, among other things,
Hayes to appear for an examination by a vocational rehabilitation
expert. Supreme Court denied that part of the motion and
defendant appeals.

      Initially, and contrary to plaintiffs' argument, we find
that, because the underlying order "affects a substantial right"
– i.e., defendant's ability to prepare a defense – it is
appealable as of right (CPLR 5701 [a] [2] [v]; see Bristol v
Evans, 210 AD2d 850, 851 [1994]). Turning to the merits, CPLR
3101 "broadly mandates full disclosure of all matter material and
necessary in the prosecution and defense of an action" (Kavanagh
v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]
[internal quotation marks and citation omitted]). "The words
'material and necessary' as used in [CPLR] 3101 must 'be
interpreted liberally to require disclosure, upon request, of any
facts bearing on the controversy which will assist preparation
for trial by sharpening the issues and reducing delay and
prolixity'" (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014],
quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406
[1968]; see American Assn. of Bioanalysts v New York State Dept.
of Health, 12 AD3d 868, 869 [2004]). To properly exercise such
discretion, a trial court must balance the need for discovery
"against any special burden to be borne by the opposing party"
(American Assn. of Bioanalysts v New York State Dept. of Health,
12 AD3d at 869 [internal quotation marks and citations omitted]).
If the trial court has engaged in such balancing, its
determination will not be disturbed in the absence of an abuse of
discretion (see Kavanagh v Ogden Allied Maintenance Corp., 92
NY2d at 954; American Assn. of Bioanalysts v New York State Dept.
of Health, 12 AD3d at 869).

      Here, defendant sought to compel Hayes to submit to an
examination before a vocational rehabilitation expert. While we
previously held that there is "no statutory authority to compel
the examination of an adverse party by a nonphysician vocational
rehabilitation specialist" (Mooney v Osowiecky, 215 AD2d 839, 839
[1995]), the Court of Appeals has since confirmed that the
mandate for broad disclosure is not necessarily limited by the
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more specific provision of the CPLR that allows a defendant to
demand that a plaintiff submit to a physical or mental
examination "by a designated physician" (CPLR 3121 [a]) where his
or her medical condition is at issue (see Kavanagh v Ogden Allied
Maintenance Corp., 92 NY2d at 954). Accordingly, the
circumstances of a case may allow such a demand even in the
absence of express statutory authority (see id.; Young v
Knickerbocker Arena, 281 AD2d 761, 762 [2001]). We agree with
the conclusion reached by the other Departments that such
circumstances are not limited to those cases where a plaintiff
has retained a vocational rehabilitation expert to establish
damages, although, generally, such testing "might well be unduly
burdensome" (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d
at 954; see Smith v Cardella Trucking Co., Inc., 113 AD3d 750,
750 [2014]; Allen v New York City Tr. Auth., 35 AD3d 230, 231
[2006]; Smith v Manning, 277 AD2d 1004, 1005 [2000]).

      We recognize that Supreme Court relied upon our prior
decision in Mooney v Osowiecky (215 AD2d 839 [1995]) in denying
the motion to compel, but the ruling in that case should no
longer be followed. Hayes placed his ability to work in
controversy by claiming that, as a result of his injuries, he
suffered loss of future wages and reduced earning capacity and by
testifying at his examination before trial that his future career
opportunities were limited (see Wilkerson v Korbl, 75 AD3d 470,
471 [2010]; Scotto v M.D. Carlisle Constr. Corp., 18 AD3d 459,
460 [2005]). Further, at the time of the demand, Hayes did not
object or otherwise complain that he would be prejudiced or
burdened by such examination and no note of issue had been filed.
In our view, therefore, Hayes should be directed to appear before
a vocational rehabilitation expert.

     McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.
                              -4-                  521261

      ORDERED that the order is modified, on the law, with costs
to defendant Bette & Cring, LLC, by reversing so much thereof as
denied said defendant's motion to compel plaintiff Donald C.
Hayes to submit to an examination by a vocational rehabilitation
expert; said motion granted; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
