Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50195(U))

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated August 23, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) dated August 23, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court treated that submission, which also included amended opposition to defendant’s motion, as an unauthorized sur-reply. In the alternative, plaintiff argues that defendant’s motion should be denied.

The record demonstrates that, after serving its cross-moving papers seeking summary judgment and opposing defendant’s motion, plaintiff served an amended cross-motion and [*2]amended opposition to defendant’s motion. Defendant subsequently served papers in further support of its motion for summary judgment and in opposition to both plaintiff’s cross-moving and amended cross-moving papers. As plaintiff’s amended papers were served almost six months before defendant’s reply papers were served, which reply papers addressed the merits of plaintiff’s amended papers, plaintiff’s amended papers were not unauthorized sur-reply papers (see CPLR 2214 [c]). Nevertheless, reversal is not warranted. Neither plaintiff’s initial cross-motion and opposing papers nor its amended papers were sufficient, individually or collectively, to demonstrate the existence of a triable issue of fact, since, “contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Contrary to plaintiff’s further contention, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [2] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Indeed, if, as plaintiff contends, insurance companies should only be able to obtain such information using discovery demands after litigation has ensued, insurance companies would be confronted with a dilemma—to pay the claims for which the plaintiff may not be eligible to receive reimbursement and then commence a suit to recoup such payment (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 322), or refrain from paying and wait until after plaintiff commences litigation to investigate via discovery whether plaintiff is eligible for reimbursement, which risks the insurance company being held liable for years of interest that would have accrued upon the claims in the interim at the rate of two percent per month (see 11 NYCRR 65-3.9 [a]), plus attorney’s fees (see 11 NYCRR 65-4.6). As plaintiff objected to the verification requests claiming they were nullities, the record establishes that plaintiff did not “provide within 120 calendar days from the date of the initial request either all such verification under [plaintiff’s] control or possession or written proof providing reasonable justification for the failure to comply” (11 NYCRR 65-3.5 [o]). Consequently, the arguments raised on appeal by plaintiff lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.