EBT’s of medical necessity cases.

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 ).”

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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.