Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50306(U))

The Rybak Firm, PLLC (Oleg Rybak 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 (D. Bernadette Neckles, J.), dated June 26, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses.

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 (D. Bernadette Neckles, J.) dated June 26, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses. Plaintiff argues on appeal that the order should be reversed, defendant’s motion should be denied, and either the matter should be remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, or in the alternative, plaintiff’s separate motion to dismiss defendant’s affirmative defenses should be granted.

Contrary to plaintiff’s contention on appeal, defendant’s verification requests, which [*2]sought information such as plaintiff’s management agreements, W-2 forms, business-related bank records, and lease agreements, to determine whether plaintiff was ineligible to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to a failure to meet licensing requirements (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) were not improper (see Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2025 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

As plaintiff’s appellate brief notes, the order appealed from “made no mention of [plaintiff’s] Amended Cross-Motion.” Consequently, we do not reach any issue with respect to plaintiff’s amended cross-motion for summary judgment, as it was not addressed in the order appealed from (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). However, we note that, contrary to the contention in plaintiff’s appellate brief, 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 (see 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]).

Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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