February 27, 2026

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50674(U))

Headnote

The provider failed to rebut proof that the claim underlying its third cause of action had been paid. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion for summary judgment dismissing the complaint. The provider sought remittal for consideration of amended opposition or denial of the cross motion; the court relied on its prior Burke Physical Therapy v State Farm decision. Addressing an argument first raised at oral argument, the court acknowledged that the third claim was never denied but found no denial warranted: the insurer submitted an Explanation of Review showing payment and a deposited check, and the provider did not respond to that proof.

Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50674(U))

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.
2026 NY Slip Op 50674(U) [88 Misc 3d 134(A)]
Decided on February 27, 2026
Appellate Term, Second Department
As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


Digest-Index Classification: Unclassified

Burke Physical Therapy, P.C., as Assignee of Caraballo, Joshua, Appellant,

v

State Farm Mutual Automobile Ins. Co., Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2024-333 K C

Present: : Chereé A. Buggs, J.P., Marina Cora Mundy, Lisa S. Ottley, JJ

The Rybak Firm, PLLC (Oleg Rybak 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.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint.

[*1]

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 its brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint. Plaintiff argues on appeal that the matter should be remitted to the Civil Court for consideration of what plaintiff denominated as amended opposition to defendant’s cross-motion for summary judgment or, in the alternative, that defendant’s cross-motion should be denied.

For the reasons stated in Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (86 Misc 3d 128[A], 2025 NY Slip Op 50836[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]), the order, insofar as appealed from, is affirmed.

We note that, at oral argument, plaintiff argued for the first time that the bill underlying the [*2]third cause of action, for $475 based upon services rendered on February 11, 2019, was never denied. While plaintiff is correct, a denial was not warranted under the circumstances. In opposition to defendant’s cross-motion for summary judgment, plaintiff did not respond to, let alone rebut, defendant’s proof that the claim had been paid, which included an Explanation of Review showing payment for that bill and a copy of the check showing that it had been deposited.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026

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