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 [f]; 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 Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”
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 [a]). 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 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).”
