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July 1, 2022

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50623(U))

https://www.beynensonlaw.com/case-law/burke-physical-therapy-p-c-v-state-farm-mut-auto-ins-co-2022-ny-slip-op50623u/

Court
Appellate Term, Second Department
Decided
July 1, 2022
Citation
2022 NY Slip Op 50623(U) · 75 Misc 3d 143(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 7 later decisions (see Cited by)
Issues
Verification requests
Legal questions
Outstanding verification and premature actions (see the maps)
Cite as
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143(A), 2022 NY Slip Op 50623(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's qualified assertion of mailing verification failed to show compliance or a reasonable justification for noncompliance. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for failure to provide requested verification and the denial, as academic, of the provider's motion to compel discovery and dismiss affirmative defenses. The insurer's claims specialist stated that none of the requested documents had been received. The provider's owner stated only that verification was mailed to the extent a response was proper and the material was in the owner's possession. That affidavit raised no triable issue under 11 NYCRR 65-3.8 (b) (3).

Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50623(U))

[*1]
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.
2022 NY Slip Op 50623(U) [75 Misc 3d 143(A)]
Decided on July 1, 2022
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-471 K C
Burke Physical Therapy, P.C., as Assignee of Huertas, Elkyn, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

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 (Gina Levy-Abadi, J.), dated June 9, 2021. The order granted defendant’s cross motion for summary judgment dismissing the complaint and denied, as academic, plaintiff’s motion to compel discovery and 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 granting defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff failed to provide requested verification, and denying, as academic, plaintiff’s motion which had sought to compel discovery and dismiss defendant’s affirmative defenses.

Contrary to plaintiff’s contention on appeal, the affidavit by plaintiff’s owner in opposition to defendant’s cross motion for summary judgment was insufficient to raise a triable issue of fact. While defendant’s claims specialist stated that defendant had not received any of the documents that defendant’s verification requests sought to obtain, plaintiff’s owner merely stated that he had mailed the requested verification “to the extent such response was proper and in [his] possession.” Thus, [*2]plaintiff failed to demonstrate that it had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests (see 11 NYCRR 65-3.8 [b] [3]). Consequently, we find no basis to disturb the order (see CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 1, 2022

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature

Held the provider failed to raise a triable issue because its owner only claimed mailing verification 'to the extent proper and in his possession,' showing neither compliance nor reasonable justification, so dismissal was affirmed.

  • Appellate DivisionApp Div 31
  • Appellate TermApp Term 285
  • Trial courtsTrial 69
2014, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2013, Appellate Division: 2 decisions (2 Insurer's showing fails)2011, Appellate Division: 5 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2009, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Insurer's showing fails)2008, Appellate Division: 2 decisions (2 Triable issue)2007, Appellate Division: 6 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails, 1 Provider complied)2006, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2005, Appellate Division: 4 decisions (2 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2004, Appellate Division: 5 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)2026, Appellate Division: 1 decision (1 Nonresponse denial upheld)2023, Appellate Term: 2 decisions (2 Nonresponse denial upheld)2022, Appellate Term: 14 decisions (6 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Triable issue, 3 Insurer's showing fails)2021, Appellate Term: 4 decisions (3 Premature: verification outstanding, 1 Triable issue)2020, Appellate Term: 5 decisions (1 Premature: verification outstanding, 3 Triable issue, 1 Insurer's showing fails)2019, Appellate Term: 26 decisions (11 Premature: verification outstanding, 3 Nonresponse denial upheld, 10 Triable issue, 2 Insurer's showing fails)2018, Appellate Term: 9 decisions (2 Premature: verification outstanding, 7 Triable issue)2017, Appellate Term: 41 decisions (15 Premature: verification outstanding, 22 Triable issue, 4 Insurer's showing fails)2016, Appellate Term: 39 decisions (9 Premature: verification outstanding, 26 Triable issue, 4 Insurer's showing fails)2015, Appellate Term: 21 decisions (9 Premature: verification outstanding, 11 Triable issue, 1 Insurer's showing fails)2014, Appellate Term: 16 decisions (10 Premature: verification outstanding, 6 Triable issue)2013, Appellate Term: 11 decisions (9 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails)2012, Appellate Term: 12 decisions (10 Premature: verification outstanding, 2 Triable issue)2011, Appellate Term: 7 decisions (7 Premature: verification outstanding)2010, Appellate Term: 15 decisions (13 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2009, Appellate Term: 10 decisions (4 Premature: verification outstanding, 6 Insurer's showing fails)2008, Appellate Term: 12 decisions (2 Premature: verification outstanding, 10 Insurer's showing fails)2007, Appellate Term: 6 decisions (4 Premature: verification outstanding, 2 Insurer's showing fails)2006, Appellate Term: 7 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails)2005, Appellate Term: 8 decisions (1 Triable issue, 6 Insurer's showing fails, 1 Provider complied)2004, Appellate Term: 3 decisions (1 Premature: verification outstanding, 2 Insurer's showing fails)2003, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2024, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2025, Appellate Term: 12 decisions (1 Premature: verification outstanding, 11 Nonresponse denial upheld)2026, Appellate Term: 1 decision (1 Insurer's showing fails)2023, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2022, Trial courts: 1 decision (1 Premature: verification outstanding)2021, Trial courts: 5 decisions (1 Nonresponse denial upheld, 2 Triable issue, 2 Insurer's showing fails)2020, Trial courts: 2 decisions (2 Insurer's showing fails)2018, Trial courts: 1 decision (1 Insurer's showing fails)2017, Trial courts: 6 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Insurer's showing fails)2014, Trial courts: 1 decision (1 Insurer's showing fails)2013, Trial courts: 1 decision (1 Triable issue)2012, Trial courts: 7 decisions (2 Premature: verification outstanding, 2 Triable issue, 2 Insurer's showing fails, 1 Provider complied)2011, Trial courts: 2 decisions (2 Insurer's showing fails)2010, Trial courts: 3 decisions (2 Premature: verification outstanding, 1 Insurer's showing fails)2009, Trial courts: 5 decisions (3 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2008, Trial courts: 8 decisions (5 Premature: verification outstanding, 1 Triable issue, 2 Insurer's showing fails)2007, Trial courts: 1 decision (1 Insurer's showing fails)2006, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Insurer's showing fails)2005, Trial courts: 8 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails, 1 Provider complied)2004, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Provider complied)2024, Trial courts: 1 decision (1 Nonresponse denial upheld)2025, Trial courts: 4 decisions (2 Nonresponse denial upheld, 2 Triable issue)2026, Trial courts: 7 decisions (1 Premature: verification outstanding, 3 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)This decision
20052010201520202025
Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co. (2019 NY Slip Op 50576(U)) FollowedA provider's opinion that requested invoices are unnecessary does not reasonably justify failing to supply verification.

Cited by

A label shows how the later decision treated this one.

  • Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U)) FollowedThe provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.
  • Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50794(U)) FollowedThe provider failed to show that it supplied requested verification or reasonably justified noncompliance.
  • Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2026 NY Slip Op 26164) FollowedThe provider failed to raise a factual issue concerning compliance with verification requests within 120 days.
  • Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51216(U)) FollowedThe insurer's summary judgment dismissing the provider's assigned no-fault claims was affirmed.
  • Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2026 NY Slip Op 51806(U)) FollowedThe provider failed to show that it supplied requested verification or justified noncompliance within 120 days.
  • Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2025 NY Slip Op 50376(U)) FollowedThe provider failed to supply requested verification within 120 days or reasonably justify noncompliance.
  • Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51217(U)) FollowedBringing requested documents to an EUO while refusing to let the insurer copy them does not constitute providing those documents.
  • Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50196(U))The provider's qualified assertion that it mailed verification did not establish compliance or a reasonable justification for noncompliance.
  • New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U))The provider failed to raise a triable issue that it supplied requested verification or reasonably justified noncompliance.

Similar decisions

  • Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50840(U))The insurer's cross motion for summary judgment based on the provider's failure to supply verification was upheld on appeal.
  • Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal.
  • Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51232(U))The trial record supported findings that the provider had not fully supplied requested verification and that the insurer timely denied the claim.
  • JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U))The provider's affidavit raised a factual issue over receipt of requested verification and whether the second cause of action was premature.
  • Lefferts Gardens Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 50599(U))The provider's action was premature because it failed to respond to the insurer's timely and proper verification requests.
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