Medical Arts Radiological Group, P.C. v NY Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 51035(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2013. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking to compel disclosure.

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, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity, based upon a peer review, and served its motion upon plaintiff’s counsel on August 20, 2012. While defendant’s motion was pending, plaintiff moved, pursuant to CPLR 3124, to compel disclosure, or for alternative relief. By order entered February 8, 2013, the Civil Court granted plaintiff’s motion to the extent that defendant was directed to provide verified written discovery responses within 45 days of the date of the order or be precluded from offering the evidence at issue. Defendant appeals from this order. The Civil Court subsequently denied defendant’s motion for summary judgment with leave to renew upon determination of the present appeal.

Service of a notice of motion pursuant to CPLR 3212 automatically stays disclosure until determination of the motion, unless the court orders otherwise (CPLR 3214 [b]; see John Eric Jacoby, M.D., P.C. v Loper Assoc., 249 AD2d 277 [1998]). A court may direct otherwise if there is a legitimate need for discovery (see Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]). Thus, when defendant moved for summary judgment dismissing the complaint, an automatic stay of disclosure went into effect pursuant to CPLR 3214 (b) (see Arts4All, Ltd. v Hancock, 54 AD3d 286 [2008]), and remained in effect (see Rockaway Med. & Diagnostic, P.C. v Utica Mut. Ins. Co., 19 Misc 3d 142[A], 2008 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2008]) until February 8, 2013, when the Civil Court directed defendant to provide verified responses to plaintiff’s demands for discovery. Plaintiff demonstrated that there was a legitimate need for discovery with respect to defendant’s defense of lack of medical necessity (see Reilly, 269 AD2d at 582; 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 2011]). “Therefore, the court properly considered [plaintiff’s motion] during the pendency of [defendant’s] motion for summary judgment” (Reilly, 269 AD2d at 582).

Defendant does not deny that it received plaintiff’s demand for verified written interrogatories and notice for discovery and inspection, and defendant does not deny that it failed to respond to the demands. CPLR 3101 (a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in finding that there was a legitimate need for discovery to respond to defendant’s summary judgment motion (see e.g. CPLR 3212 [f]) and directing defendant to respond to plaintiff’s written demands for discovery (see Metropolitan Diagnostic Med. Care, P.C., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U]). Consequently, under the circumstances, the court properly granted plaintiff’s motion to compel disclosure.Accordingly, the order, insofar as appealed from, is affirmed.

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