Opinion
No. 2021-652 K C
12-09-2022
Burke Physical Therapy, P.C., as Assignee of Fonrose, Kyana, Appellant, v. 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.
Unpublished Opinion
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.
PRESENT:: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
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.