WILKERSON v. KORBL

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Docket Number

No. 2420.

Attorney(S)

Carman, Callahan Ingham, LLP, Farmingdale (Peter F. Breheny of counsel), for appellants. Levy and Levy, New York (Susan J. Levy of counsel), for respondent.

Judges

Peter Tom
Richard T. Andrias
John W. Sweeny
Dianne T. Renwick

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Smart Summary

Factual and Procedural Background

Plaintiff Rodney L. Wilkerson filed a lawsuit against defendants Joseph Korbl, Jr., et al. The plaintiff’s second supplemental bill of particulars disclosed that future lost wages claimed would exceed $900,000. However, during his deposition on October 24, 2008, it was revealed that since the accident, the plaintiff had neither worked nor sought employment. The Supreme Court of Bronx County entered an order on or about March 12, 2009, denying defendants' cross motion to compel the plaintiff to submit to evaluation by a vocational rehabilitation expert. Defendants appealed this denial. The Appellate Division of the Supreme Court of New York, First Department, reviewed and reversed the denial, directing the plaintiff to submit to a vocational evaluation not more than 10 days before trial. The procedural context also includes a compliance conference order dated September 24, 2008, which mandated physical examination by a designated physician but did not specifically provide for vocational evaluation. Defendants served notice for a vocational evaluation to be conducted shortly after the deposition, but the plaintiff was not present in New York at that time.

Legal Issues Presented

Whether the trial court properly denied the defendants' cross motion to compel the plaintiff to submit to evaluation by a vocational rehabilitation expert.
Whether it is appropriate to require the plaintiff to undergo vocational evaluation given the nature of the damages claimed and the plaintiff’s employment status post-accident.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reasoned that because the plaintiff’s future lost wages claim constitutes a significant portion of total damages and the plaintiff has not resumed or sought employment since the accident, it is appropriate to require a vocational evaluation. Although the prior compliance conference order did not expressly provide for vocational evaluation, the court exercised its discretion to reverse the denial of the defendants’ motion. To reduce the burden on the plaintiff, the court ordered the vocational evaluation to be scheduled to coincide with the plaintiff’s presence in New York shortly before trial.

Holding and Implications

The Appellate Division reversed the trial court’s order denying the defendants’ cross motion and directed the plaintiff to submit to a vocational rehabilitation evaluation.

The direct effect of this decision is that the plaintiff must undergo vocational evaluation within 10 days before trial. The opinion does not establish new precedent but clarifies the court’s discretion in ordering vocational evaluations when future lost wages are a substantial part of the damages claimed and the plaintiff has not sought employment post-accident.

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RODNEY L. WILKERSON, Respondent, v. JOSEPH KORBL, JR., et al., Appellants.

Plaintiffs second supplemental bill of particulars made defendants aware that future lost wages would exceed $900,000. However, not until his deposition of October 24, 2008 was it disclosed that since the date of the accident, plaintiff had neither worked nor attempted to seek any form of employment. While the court's compliance conference order of September 24, 2008 does not specifically provide for vocational evaluation, it does call for physical examination by a designated physician upon written notice within five business days of plaintiffs fruther examination before trial (EBT). Defendants served a notice of evaluation by their vocational rehabilitation expert on the date of the EBT to be performed four days later, but plaintiff had returned to his home in Georgia by that date.

Because it appears that plaintiff may not resume any form of employment and that future lost wages will comprise a considerable proportion of his total damages, it is appropriate that vocational evaluation be performed. However, to minimize the burden on plaintiff, the evaluation should be scheduled to coincide with his presence in New York in preparation for trial.