Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50194(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 February 16, 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 February 16, 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 rejected that submission, which also included amended opposition to defendant’s motion, as “procedurally improper”, citing CPLR 2214. In the alternative, plaintiff argues that defendant’s motion should be denied.

Contrary to plaintiff’s contention on appeal, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, [*2]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 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke 2 Physical Therapy, P.C., as Assignee of Lewis, Destiny v State Farm Mut. Auto. Ins. Co., — Misc 3d &mdash, 2025 NY Slip Op — [appeal No. 2023-961 K C], decided herewith).

“[C]ontrary 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]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order is affirmed.

The decision and order of this court dated June 14, 2024 (2024 NY Slip Op 50803[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

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