Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51152(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered July 16, 2024. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) entered July 16, 2024 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification. While plaintiff does not argue that its cross-motion should have been granted, on appeal, plaintiff argues that the order, insofar as appealed from, should be reversed and the matter remitted to the Civil Court for consideration of what plaintiff denominated as an amended cross-motion, which the court declined to consider, rejecting that submission as an improper surreply. In the alternative, plaintiff argues that defendant’s motion should have been denied.

Contrary to plaintiff’s 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 [a] [1]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke Physical Therapy, P.C., v State Farm Mut. Auto. Ins. Co., 85 Misc 3d 130[A], 2025 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Plaintiff also argues that the instant action cannot be maintained, as collateral estoppel effect should be given to an order of the Supreme Court, Nassau County, in a declaratory judgment action brought by defendant herein in that court, denying defendant’s motion for [*2]summary judgment (see State Farm Mut. Auto. Ins. Co. v Burke Physical Therapy, P.C., 2022 NY Slip Op 30580[U] [Sup Ct, Nassau County 2022]). However, this court has previously held that the denial of that motion by the Supreme Court “has no preclusive effect . . . 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 address plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider plaintiff’s subsequent submission of that Supreme Court decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order, insofar as appealed from, is affirmed.

MUNDY, J.P., BUGGS and QUIÑONES, JJ., concur.