Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 19, 2012. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint and denied the branch of plaintiff's cross motion seeking to compel defendant to respond to discovery demands.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, defendant's motion for summary judgment dismissing the complaint is denied with leave to renew after the completion of discovery, the branch of plaintiff's cross motion seeking to compel defendant to respond to discovery demands is granted, and defendant is directed to serve responses to plaintiff's discovery demands within 60 days of the date of this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant had failed to respond to discovery demands and that defendant's responses were necessary to oppose defendant's motion (see CPLR 3212 [f]). Plaintiff also cross-moved to, among other things, compel defendant to provide the requested discovery (see CPLR 3124). The Civil Court granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion. [*2]

"CPLR 3212 (f) provides, in relevant part, that a court may deny a motion for summary judgment should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated. This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Jones v American Commerce Ins. Co., 92 AD3d 844, 845 [2012] [internal quotation marks and citations omitted]). Here, in support of its motion for summary judgment, defendant alleged that it had timely denied plaintiff's claims on the ground of lack of medical necessity based on a peer review report. 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, 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 (see Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]). Under the circumstances of this case, summary judgment was premature (see CPLR 3212 [f]), and the branch of plaintiff's cross motion seeking to compel discovery should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, defendant's motion for summary judgment dismissing the complaint is denied with leave to renew after the completion of discovery, the branch of plaintiff's cross motion seeking to compel defendant to respond to discovery demands is granted, and defendant is directed to serve responses to plaintiff's discovery demands within 60 days of the date of this decision and order.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 30, 2013