Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 2013 NY Slip Op 52246(U)(App. Term 2d Dept. 2013)
“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, 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 (see Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]). Under the circumstances of this case, summary judgment was premature (see CPLR 3212 [f]), and the branch of plaintiff’s cross motion seeking to compel discovery should have been granted.”
It appears that A. Central moved for summary judgment relatively quickly following receipt of an answer. Furthermore, Metropolitan Diagnostic cross-moved for disclosure based relief in that motion sequence. That is why “Under the circumstances”, Plaintiff was able to stave off summary judgment. This should be contrasted to the line of cases where Plaintiff does not seek disclosure for 8-10 months following joinder of issue and Defendant then moves for summary judgment. In that scenario, Plaintiff loses its motion and summary judgment is granted.
