December 9, 2022
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51217(U))
https://www.beynensonlaw.com/case-law/burke-physical-therapy-p-c-v-state-farm-mut-auto-ins-co-2022-ny-slipop-51217u/
- Decided
- December 9, 2022
- Citation
- 2022 NY Slip Op 51217(U) · 77 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- Verification requests
- Legal questions
- Outstanding verification and premature actions (see the maps)
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.
Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51217(U))
| Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2022 NY Slip Op 51217(U) [77 Misc 3d 129(A)] |
| Decided on December 9, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-652 K C
against
State Farm Mutual Automobile Insurance Company, Respondent.
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 (Matthew P. Blum, J.), dated September 29, 2021. The order denied plaintiff’s motion to dismiss defendant’s affirmative defenses and granted defendant’s cross motion for summary judgment dismissing the complaint.
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 denying, as moot, plaintiff’s motion to dismiss defendant’s affirmative defenses and granting defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff failed to provide requested verification.
Contrary to plaintiff’s contention, the affidavit by plaintiff’s owner submitted in opposition to defendant’s cross motion was insufficient to raise a triable issue of fact as to whether plaintiff provided the requested verification (see 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]).
Contrary to plaintiff’s remaining contention as to defendant’s cross motion, the exhibits annexed to defendant’s reply papers do not demonstrate that plaintiff “did, in fact, respond” to the verification requests. Among other things, as stated by defendant, bringing documents to an examination under oath, but not allowing the insurer to copy any such document, does not constitute providing those documents.
Accordingly, the order is affirmed.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 9,
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.
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's owner's affidavit raised no triable issue that verification was provided, and bringing documents to an EUO without letting the insurer copy them was not providing them, so dismissal was affirmed.
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.
- Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50623(U)) FollowedThe provider's qualified assertion of mailing verification failed to show compliance or a reasonable justification for 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.
- 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.
- Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.
- 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.
- Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2025 NY Slip Op 50376(U))The provider failed to supply requested verification within 120 days or reasonably justify noncompliance.