3212(f) – motion denied

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.

Related Articles

• CPLR 3212 Summary Judgment: When Relief Becomes Improper (Complete Guide)
• A motion for summary judgment is denied pending disclosure
• Premature summary judgment motion
• Protection of the MRI facilities on medical necessity motions
• Why conclusory affidavits fail in opposing medical necessity summary judgment motions
• New York No-Fault Insurance Law