Medical Arts Radiological Group, P.C. v NY Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51035(U)(App. Term 2d Dept. 2015)
“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).”
I do not think this would apply to an EMG provider or most conservative care providers. Yet, MRI providers and DME providers cannot legitimately interpose meaningful rebuttal without any discovery.
