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A divided panel on the Appellate Division, 1st Department, has voted to join their 4th Department colleagues in adopting a broad view of discovery for lawsuits that allege labor law violations. The majority of the appeals court said a cement mason who was injured at work must submit to an examination by a vocational rehabilitation specialist chosen by his employer, even though the man did not plan to call a similar specialist of his own at trial. Two dissenting justices said the examination would impose an unfair burden on the plaintiff, Matthew Freni, who was injured at a construction site on East 33rd Street in Manhattan six years ago. Freni, who has had knee operations that he claims prevent him from working, sued the owner of the building, Eastbridge Landing Associates, and the general contractor, HRH Construction Co. He alleged violations of labor law and sought compensation for $150,000 in lost wages plus continuing earnings. As the two parties approached trial, the defendants asked that Freni undergo an examination by a vocational rehabilitation expert. Freni’s attorney objected, arguing that New York law did not require such an examination unless a plaintiff planned to call a rehabilitation expert of his own. Bronx Supreme Court Justice Sallie Manzanet rejected that argument and ordered Freni to be examined. On appeal, three justices of the 1st Department agreed, saying that although the Court of Appeals has yet to squarely address the issue, its holding in Kavanagh v. Odgen Allied Maintenance Corp., 92 NY2d 952, supports “open and far-reaching pretrial discovery.” The majority also cited Smith v. Manning, 277 AD2d 1004, a 4th Department ruling that tackled this exact issue and ruled that a plaintiff should undergo an examination by a rehabilitation expert at the request of the defense. “We believe that the Fourth Department’s holding in Smith is directly applicable to this case and is consistent with the view expressed in Kavanagh,” the majority wrote in Freni v. Eastbridge Landing Associates LP, 893N. In a dissenting opinion, Justice Betty Weinberg Ellerin wrote that the trial court had abused its discretion in ordering Freni to undergo an examination. “Kavanagh requires that the instant defendants’ motion to compel plaintiff to submit to an examination by a vocational rehabilitation expert be denied, not because plaintiff did not retain such an expert, but because defendants have not shown that their need for the discovery outweighs the burden to plaintiff,” Justice Ellerin wrote. She added: “The court’s direction here imposes precisely the ‘special burden [on] the opposing party’ that Kavanagh warns against.” The majority said that the dissent’s position could not “be reconciled with New York’s policy of liberal disclosure.” Justices Eugene Nardelli, Ernst H. Rosenberger and Luis A. Gonzalez were in the majority. Justice Angela M. Mazzarelli concurred with Ellerin. W. Matthew Sakkas represented Freni on appeal. Steven B. Prystowsky of Lester Schwab Katz & Dwyer represented the defendants.

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