Burke 2 Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co. PIP/BI Claims

2025 NY Slip Op 34054(U)

• Court: Civil Court Of The City Of New York, Kings County
• Decided: October 29, 2025
• Docket: Index No. CV-735105-19/KI
• Status: Unpublished

Opinion

Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims 2025 NY Slip Op 34054(U) October 29, 2025 Civil Court of the City of New York, Kings County Docket Number: Index No. CV-735105-19/KI Judge: Javier Ortiz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS CIVIL COURT - CIVIL 10/30/2025 10:31 AMINDEX NO. CV-735105-19/KI NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/30/2025

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS PART 41 Index No.CV-735105-19/ KI

BURKE 2 PHYSICAL THERAPY, P.C. 4/23/25 NFA Cal. #38-39 Mtn . Seq. #1..:2. NNO Vega-Bou, Joshua, DECISION AND ORDER

Plaintiff, Recitat ion , as required by CPLR §2219(a), of the -against- papers considered in review of these Motions:

Papers STATE FARM MUTUAL AUTOMOBILE I S. P' s Motion & Supporting Documents ... . I 1, 15-19 CO. PIP/BI CLAIMS, D's Cross-Motion & Supporting Documents .... .. 8-9, 46-52 Defendant. P' s 5/11/2 1 Affirmation in Opposition & Exs .. .. .. 13 , 20-28 D' s 5/1 9/21 Affirmation in Reply & Exhibits .. .. . . I 0, 53-55 P' s 8/9/22 Amended Opposition & Exhibits ... ...... 2-3, 29-45 D' s 8/24/22 Aff in Reply to Amended Papers & Exs ...7, 56-65

Upon the foregoing cited papers and after oral argument, Plaintiffs Motion to Dismiss Affirmative Defenses and Defendant's Motion to Dismiss are decided as follows:

Both motions are DENIED. The Court nonetheless finds that Defendant established that it timely mailed verification requests to Plaintiff and issued timely denials . (See NYSCEF Nos. 46-48.)

The Court first notes that it disagrees with Plaintiffs arguments that Defendant's verification requests here were improper. In Burke 2 Physical Therapy, P. C. v State Farm Mut. Auto. Ins. Co., 85 Misc3d 130(A), 2025 NY Slip Op 50195(U) (App Term, 2d Dept 2025), the Appellate Term held:

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 [2] [12]; State Farm Mut. Auto. ins. Co. v Malle/a , 4 NY3d 313 , 827 N.E.2d 758, 794 N.Y.S.2d 700 (2005] . Indeed, if, as plaintiff contends, insurance companies should only be able to obtain such information using discovery demands after litigation has ensued, insurance companies would be confronted with a dilemma- to pay the claims for which the plaintiff may not be eligible to receive reimbursement and then commence a suit to recoup such payment (see State Farm Mui. Auto. Ins. Co. v Malle la, 4 NY3d at 322), or refrain from paying and wait until after plaintiff commences litigation to investigate via discovery whether plaintiff is eligible for reimbursement, which risks the insurance company being held liable for years of interest that would have accrued upon the claims in the interim at the rate of two percent per month (see 11 NYCRR 65-3.9 [a]), plus attorney 's fees (see 11 NYCRR 65 -4.6).

Burke, 2025 NY Slip Op 50195(U), at *3-4.

[* 1] 1 of 2 FILED: KINGS CIVIL COURT - CIVIL 10/30/2025 10:31 AMINDEX NO. CV-735105-19/KI NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/30/2025

In its Amended Oppositio n, 1 Plaintiff has included the Affidavit of its owner John A. Nasrinpa y, and P.T., which states that Mr. Nasrinpa y "personal ly responde d [to] and mailed on 03/20/201 9 t on the 04/30/2019 the verificati on response in issue in this case to the address designate d by defendan verification requests." (NYSCE F No. 30 at 2 ,r 5.) However , Defendan t's Claims Specialis t Lori Madigan No. responds that no verificati on requests were ever received by Defendan t from Plaintiff. (See NYSCEF 9 at p.51 ,r,r 16-17 .)2 Accordin gly, the Court finds that there is an issue of fact for the factfinder to resolve.

The Court notes that a recent decision of The Honorabl e Sandra Elena Roper found that Plaintiffs on owner's affidavit in that case was insufficie nt to establish that he had mailed the requested verificati because, in that case, he caveated that the verification was mailed "to the extent such response was proper and, in [his] possessio n" and that he "respond ed to and mailed all requested documen tation that was proper BJ and which Plaintiff had access to." (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/ Claims, 85 Misc3d 1238(A), 2025 NY Slip Op 50376(U) [Civ. Ct. , Kings County Mar. 24, 2025].) However , no such language appears in the affidavit at issue before the Court. (See NYSCEF No. 30.)

The Appellate Term had similarly found Plaintiff s owner's affidavit insufficie nt where he "stated [his] that he had mailed the requested verification 'to the extent such response was proper and in 75 Misc3d 143(A), 2022 possessio n."' (Burke Physical Therapy, P. C. v State Farm Mut. Auto. ins. Co., NY Slip Op 50623(U) [App Term, 2d Dept 2022].) Again, this language does not appear in the affidavit and a before the court. Defendan t provides a copy of the affidavit in that other action to the Court here, cursory review confirms that the language that the Appellate Term found problema tic in that affidavit does not appear in the affidavit currently before the Court. (Compare NYSCEF No. 30 [Nasrinpay 8/3/22 affidavit submitted here] with NYSCEF No. 60 [3/28/21 Nasrinpay affidavit submitted for a different assignor in the Burke action before the Appellate Term].)

Based on these key differenc es between the affidavits , the Court does not have sufficient evidence before it to find that the affidavit is "feigned," as Defendan t would have the Court find.

Accordingly, there is an issue of fact for the factfinder to resolve as to whether verification remains outstanding. The case shall proceed to trial on this issue only.

This constitute s the Decision and Order of the Court.

Date: October 29, 2025 Brooklyn, New York

ENETERED - Kings Civil Court unty Civil Court 10/30/2025, 10:29:51 AM

1In the same case cited above involving these same parties, the Appellate Term indicated that plaintiffs amended not affirmation in opposition could properly be considered by the court and that "plaintiffs amended papers were unauthorized sur-reply papers (see CPLR 2214 [c]." Burke, 2025 NY Slip Op 50 I 95(U), at *2.

2The Court notes that Plaintiff attached 197 pages of correspondence pertaining to related verification requests. here ( YSCEF No. 12.) However, this correspondence does not directly reference the assignor before the Corn1 and therefore the Court will not consider it. 2

[* 2] 2 of 2