Mooney v. Osowiecky

Mercure, J. Appeal from an order of the Supreme Court (Teresi, J.), entered October 24, 1994 in Albany County, which granted defendants’ motion to compel plaintiff Kimberly M. Mooney to submit to an examination by a vocational rehabilitation expert. Because we agree with the position of the First Department, as initially enunciated in D'Amico v Manufacturers Hanover Trust Co. (182 AD2d 462), that courts have no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist (see, Savarese v Yonkers Motors Corp., 205 AD2d 463; Peterson v Zuercher, 198 AD2d 797 [4th Dept]; cf., Johnson v Moran Towing & Transp. Co., 194 AD2d 445; but see, Gomez v Long Is. R. R., 202 AD2d 633), we are constrained to reverse Supreme Court’s order. Defendants’ arguments concerning the advisability of [840] authorizing such discovery are best directed to the Legislature. Cardona, P. J., White, Peters and Spain, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.