IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. 2015 NY Slip Op 51213(U) Decided on August 5, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-158 K C

IDF Diagnostic Medical, P.C. as Assignee of GIZELLE CUSTODIO and VANESSA DIAZ, Respondent, August 5, 2015

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 2012. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing plaintiff's first cause of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing plaintiff's first cause of action on the ground of lack of medical necessity. Plaintiff opposed the motion on the ground that, among other things, defendant had failed to respond to discovery demands and that defendant's responses were necessary to oppose defendant's motion (see CPLR 3212 [f]). Plaintiff also cross-moved to, among other things, compel defendant to provide the requested discovery (see CPLR 3124). In an order entered November 20, 2012, insofar as appealed from, the Civil Court denied the branch of defendant's motion seeking summary judgment dismissing plaintiff's first cause of action. The Civil Court held that, since defendant had annexed its discovery responses to its reply papers, plaintiff's cross motion to compel disclosure was moot and that there was an issue of fact as to medical necessity because defendant had failed to provide, in a timely manner, the medical records which plaintiff had sought, so that plaintiff could respond to the branch of defendant's motion seeking summary judgment dismissing plaintiff's first cause of action.

In opposition to defendant's motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received in time to oppose defendant's motion (see CPLR 3212 [f]), the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant's peer reviewer. In light of the foregoing, defendant is not entitled to summary judgment dismissing plaintiff's first cause of action (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 05, 2015