EBT's of medical necessity cases.

Examination before trial, commonly known as EBT or deposition, constitutes a critical discovery device in civil litigation, including first-party no-fault insurance actions. CPLR 3101(a) provides broadly that full disclosure of all matter material and necessary in the prosecution or defense of an action shall be permitted. The question of whether and when insurance carriers may depose medical providers asserting claims for no-fault benefits has generated significant litigation, with courts required to balance the carrier’s legitimate need to develop defenses against the provider’s interest in efficiently prosecuting relatively modest monetary claims without incurring prohibitive discovery costs.

The intersection of discovery rights and summary judgment timing presents particular complications in no-fault litigation. CPLR 3212(f) permits courts to deny summary judgment motions or order continuances when essential facts are available only to the moving party or when facts necessary to justify opposition may exist but cannot then be stated. This provision recognizes that summary judgment is inappropriate when the non-moving party has not yet had adequate opportunity to conduct discovery necessary to oppose the motion. However, courts have emphasized that CPLR 3212(f) relief is not automatic and requires the party seeking discovery to demonstrate that specific, identifiable facts may exist that would defeat the motion.

In medical necessity cases, the defendant insurer typically moves for summary judgment based on peer review reports opining that the plaintiff’s treatment or supplies lacked medical necessity. The plaintiff must then establish triable issues of fact through medical evidence, often requiring expert affidavits. The question arises whether the plaintiff requires the defendant’s discovery, particularly medical records, before being able to oppose such motions. Additionally, insurers defending on medical necessity grounds may seek to depose the treating provider to explore the basis for treatment decisions and to develop impeachment material for trial.

Case Background

New York Community Hospital of Brooklyn v Mercury Casualty Company involved a medical necessity defense to a hospital’s claim for no-fault benefits. The defendant insurer moved for summary judgment, submitting peer review reports opining that the hospital services lacked medical necessity. The defendant argued that because the plaintiff hospital already possessed its own medical records, which formed the basis for the peer reviewer’s opinions, the plaintiff had all information necessary to oppose the motion and therefore CPLR 3212(f) relief was inappropriate.

The hospital opposed the motion, arguing that it required additional discovery before being able to respond to the defendant’s motion. The trial court initially granted the motion, but the Appellate Term reversed, finding that under the specific circumstances presented, the summary judgment motion was premature.

In a companion case, Kanter v Mercury Casualty Company, the defendant insurer moved to compel the plaintiff medical provider to appear for an examination before trial. The defendant asserted that because it was defending the action on medical necessity grounds, and the peer review process had identified questions regarding the necessity of services rendered, examination of the provider was material and necessary to the defense. The trial court denied the motion to compel, and the defendant appealed to the Appellate Term.

Jason Tenenbaum’s Analysis

New York Community Hosp. of Brooklyn v Mercury Cas. Co., 2016 NY Slip Op 50900(U)(App. Term 2d Dept. 2016)

“Defendant’s contention that the branch of defendant’s motion seeking summary judgment is not premature since plaintiff already possessed its own medical records upon which the peer reviewer relied lacks merit. As a result, under the circumstances of this case, defendant is not entitled to summary judgment at this time (see CPLR 3212 ; Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133, 2013 NY Slip Op 52246 ; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 ).”

Kanter v Mercury Cas. Co., 2016 NY Slip Op 50908(U)(App. Term 2d Dept. 2016)

“The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 ). As defendant is defending this action on the ground that the services rendered lacked medical necessity, and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination is material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 ).”

Legal Significance

The paired decisions in New York Community Hospital and Kanter establish complementary principles governing discovery and summary judgment in medical necessity cases. The New York Community Hospital holding recognizes that even when the plaintiff possesses its own underlying records, circumstances may render summary judgment premature pending completion of discovery. This decision rejects a mechanical approach that would permit immediate summary judgment simply because the plaintiff has access to the records the peer reviewer examined. Instead, courts must evaluate whether the specific circumstances indicate that the plaintiff requires additional discovery to mount effective opposition.

The Kanter decision confirms that medical providers asserting claims for no-fault benefits may be required to submit to examination before trial when medical necessity is contested. This holding applies the broad discovery provisions of CPLR 3101 to no-fault litigation, recognizing that insurers defending on medical necessity grounds have legitimate need to examine providers regarding their treatment decisions, diagnostic bases, and adherence to treatment protocols. The materiality standard is satisfied when the insurer’s defense theory creates a nexus between the EBT testimony and contested issues.

Together, these decisions create a framework where discovery proceeds but summary judgment may be deferred until both parties have had reasonable opportunity to develop their positions. The framework avoids both extremes: it prevents plaintiffs from avoiding discovery entirely in the name of expediting small claims, but it also prevents defendants from seeking premature summary judgment before plaintiffs can adequately respond.

The Kanter court’s citation to Great Wall Acupuncture demonstrates consistency with prior precedent recognizing the discoverability of provider testimony in medical necessity disputes. This line of authority reflects judicial recognition that medical necessity inherently involves questions about the provider’s diagnostic process, treatment selection, and clinical judgment, all of which are appropriate subjects for deposition examination.

Practical Implications

Medical providers prosecuting no-fault claims should anticipate that when medical necessity is contested, insurers will seek to depose the treating provider or a representative of the provider entity. Providers should prepare for such depositions by reviewing the patient’s complete file, refreshing recollection regarding treatment decisions, and ensuring familiarity with applicable treatment guidelines and protocols. Counsel should prepare the witness regarding the scope of examination and the types of questions likely to arise.

Insurance carriers defending medical necessity cases should serve EBT notices early in litigation rather than waiting until summary judgment stage. Early depositions permit carriers to assess the strength of the provider’s position, identify weaknesses in the treatment rationale, and develop evidence for summary judgment motions or trial. The deposition should explore not only the specific patient’s treatment but also the provider’s general treatment protocols and decision-making processes.

Regarding summary judgment timing, plaintiffs facing medical necessity motions should carefully evaluate whether they genuinely require additional discovery before responding. If so, a CPLR 3212(f) application should specifically identify what discovery is needed, what facts that discovery may reveal, and how those facts would defeat the motion. Generic requests for more discovery will not suffice; the moving party must demonstrate that specific, identifiable facts material to opposition may exist.

Defense counsel should recognize that summary judgment motions filed before plaintiffs have had adequate opportunity to conduct discovery may be denied as premature even when the motion appears substantively strong. Strategic timing requires balancing the desire for early resolution against the risk of denial on procedural grounds requiring re-filing after discovery is complete.

Related Articles

• Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
• The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee
• A plain disaster
• Please be quiet

Legal Update (February 2026): Since this 2016 post, there may have been amendments to CPLR 3212 and 3101 governing summary judgment timing and EBT procedures in medical necessity disputes, as well as potential updates to no-fault insurance regulations affecting discovery standards and examination requirements. Practitioners should verify current CPLR provisions and applicable insurance department regulations when handling medical necessity cases involving EBTs and summary judgment motions.