November 1, 2019

GC Chiropractic, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51800(U))

Headnote

The relevant facts considered by the court were that the plaintiff, GC Chiropractic, P.C., was seeking to recover first-party no-fault benefits from the defendant, Integon National Ins. Co. The defendant moved for summary judgment to dismiss the complaint on the grounds of lack of medical necessity, while the plaintiff argued that the defendant had failed to respond to discovery demands, and that those responses were necessary to oppose the motion. The court decided that the defendant was not entitled to summary judgment dismissing the complaint because the plaintiff had requested but not received the medical records relied upon by the defendant's peer reviewer in time to oppose the motion. As a result, the court reversed the order, denied the defendant's motion for summary judgment, and granted the plaintiff's cross motion to compel discovery.

Reported in New York Official Reports at GC Chiropractic, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51800(U))

GC Chiropractic, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51800(U)) [*1]

GC Chiropractic, P.C. v Integon Natl. Ins. Co.

2019 NY Slip Op 51800(U) [65 Misc 3d 146(A)]

Decided on November 1, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1173 K C

GC Chiropractic, P.C., as Assignee of Edith Carver, Appellant,
against
Integon National Ins. Co., Respondent.

Gary Tsirelman, P.C. (Devon Riley Christian of counsel), for appellant. Law Offices of Moira Doherty, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 7, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion to compel discovery.

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 [*2]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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019