Key Takeaway
Court denies insurer's summary judgment motion after defendant's late discovery responses prevent plaintiff from responding to medical necessity challenge.
This article is part of our ongoing discovery coverage, with 263 published articles analyzing discovery issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
CPLR 3212(f) is one of the most important procedural safeguards available to litigants facing a summary judgment motion. The statute provides that when it appears from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or order a continuance to permit affidavits to be obtained, depositions to be taken, or other disclosure to be carried out. In plain terms, it prevents a party from winning summary judgment by ambush — filing a motion before the opposing side has had a fair opportunity to obtain the discovery it needs to respond.
In no-fault insurance litigation, CPLR 3212(f) arises most commonly in the context of medical necessity disputes. The insurer moves for summary judgment based on a peer review report, but the medical provider has not yet received the peer review report, the underlying medical records reviewed by the peer reviewer, or other critical documentation. Without these materials, the provider cannot meaningfully oppose the motion. This procedural dynamic played out in IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., where the Appellate Term made clear that an insurer cannot benefit from its own discovery failures.
Case Background
IDF Diagnostic Medical, P.C. brought suit against New York Central Mutual Fire Insurance Co. to recover assigned first-party no-fault benefits. The insurer moved for summary judgment, arguing that the treatment provided was not medically necessary. In support, the insurer relied on its peer review evidence. However, before the motion was filed, IDF had requested discovery from the insurer, including the peer review report itself, the complete set of medical documentation relating to the assignor that the insurer had received, and the complete set of medical documentation that was provided to the insurer’s peer reviewer. None of these materials were produced in time for IDF to prepare its opposition.
The defendant then annexed its discovery responses to its reply papers — a tactic that effectively denied the plaintiff any opportunity to review and respond to the materials. The Civil Court found an issue of fact as to medical necessity precisely because the defendant’s own discovery failures had prevented the plaintiff from adequately responding.
Jason Tenenbaum’s Analysis:
IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51213(U)(App. Term 2d Dept. 2015)
“The Civil Court held that, since defendant had annexed its discovery responses to its reply papers, plaintiff’s cross motion to compel disclosure was moot and that there was an issue of fact as to medical necessity because defendant had failed to provide, in a timely manner, the medical records which plaintiff had sought, so that plaintiff could respond to the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action.”
“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 ), 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. In light of the foregoing, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action”
In this case, the penalty for ambushing the Plaintiff with late discovery is to essentially lost the medical necessity branch of the motion.
The Court’s Reasoning
The Appellate Term’s analysis rests on a straightforward application of procedural fairness. Summary judgment is a drastic remedy — it eliminates a party’s right to trial. Because of its severity, courts require that both sides have a full and fair opportunity to present their evidence before granting it. When the moving party controls the very documents the opposing party needs to respond, and fails to produce them in time, the court cannot fairly evaluate whether the motion has been adequately opposed.
The court’s approach also reflects a broader principle in no-fault litigation: insurers who assert medical necessity defenses bear the burden of demonstrating their entitlement to judgment. That burden includes ensuring that the opposing party has access to the evidentiary basis for the defense. Annexing discovery responses to reply papers — where the opponent has no opportunity to respond — is procedurally deficient and substantively unfair.
Practical Implications
For plaintiff’s attorneys and medical providers in no-fault actions, this case provides a roadmap for defeating premature summary judgment motions. When an insurer moves for summary judgment on medical necessity before producing the peer review report and supporting documentation, counsel should immediately cross-move to compel discovery and oppose the motion under CPLR 3212(f), demonstrating that the facts essential to justify opposition exist but cannot yet be stated because the insurer has withheld critical materials.
For defense counsel representing insurers, the lesson is equally clear: produce discovery before filing the summary judgment motion. Attaching discovery responses to reply papers will not cure the deficiency — it will likely result in denial of the motion. The far better practice is to respond to all outstanding discovery demands, allow the plaintiff a reasonable period to review the materials, and only then move for summary judgment.
Key Takeaway
An insurer cannot obtain summary judgment on medical necessity when its own failure to produce timely discovery — including peer review reports and underlying medical records — prevented the plaintiff from mounting an adequate opposition. CPLR 3212(f) exists precisely to prevent this kind of procedural ambush, and courts will deny motions rather than reward litigants who withhold evidence until the last moment.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Discovery is the pre-trial process through which parties exchange information relevant to the dispute. In New York, discovery practice is governed by CPLR Article 31 and involves depositions, interrogatories, document demands, and physical examinations. Disputes over the scope of discovery, compliance with demands, and sanctions for noncompliance are frequent in both no-fault and personal injury cases. These articles analyze discovery rules, court decisions on discovery disputes, and strategies for effective discovery practice.
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Frequently Asked Questions
What is discovery in New York civil litigation?
Discovery is the pre-trial phase where parties exchange relevant information and evidence. Under CPLR Article 31, discovery methods include depositions (oral questioning under oath), interrogatories (written questions), document demands, requests for admission, and physical or mental examinations. Discovery in New York is governed by the principle of full disclosure of all relevant, non-privileged information — but courts can issue protective orders to limit discovery that is overly broad or burdensome.
What happens if a party fails to comply with discovery requests?
Under CPLR 3126, a court can impose penalties for failure to comply with discovery, including preclusion of evidence, striking of pleadings, or even dismissal of the action or entry of a default judgment. Before seeking sanctions, the requesting party typically must demonstrate a good-faith effort to resolve the dispute and may need to file a motion to compel disclosure under CPLR 3124.
What are interrogatories and how are they used in New York litigation?
Interrogatories are written questions served on the opposing party that must be answered under oath within a specified timeframe. Under CPLR 3130, interrogatories in New York are limited — a party may serve a maximum of 25 interrogatories, including subparts, without court permission. Interrogatories are useful for obtaining basic factual information such as witness names, insurance details, and factual contentions. Objections must be specific and timely or they may be waived.
What is a bill of particulars in New York personal injury cases?
A bill of particulars under CPLR 3043 and 3044 provides the defendant with the specific details of the plaintiff's claims — including the injuries sustained, the theory of liability, and the damages sought. In personal injury cases, it must specify each injury, the body parts affected, and the nature of the damages claimed. An amended or supplemental bill may be served to include new injuries or updated information discovered during the course of litigation.
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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