GC CHIROPRACTIC v. INTEGON NATIONAL INS CO (2019)

ORDERED that the order is reversed, with $30 costs, defendant's motion for summary judgment dismissing the complaint is denied and plaintiff's cross motion to compel discovery is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff opposed the motion on the ground that 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 compel defendant to provide the requested discovery (see CPLR 3124). The Civil Court granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion seeking to compel discovery.

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 medical records relied upon by defendant's peer reviewer. In light of the foregoing, defendant is not entitled to summary judgment dismissing the complaint (see IDF Diagnostic Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 48 Misc 3d 138[A], 2015 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Alrof, Inc. v. Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).

Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is denied and plaintiff's cross motion to compel discovery is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.