BURKE PHYSICAL THERAPY v. STATE FARM MUTUAL AUTOMOBILE INS CO (2024)

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross-motion for summary judgment while declining to consider additional papers submitted by plaintiff in support of what it denominated as an amended cross-motion for summary judgment and opposition to defendant's motion.

The affidavit submitted by plaintiff in its initial opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, defendant's motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to respond to defendant's timely requests for additional verification, should have been denied.

Contrary to plaintiff's argument, the denial of defendant's motion for summary judgment in a declaratory judgment action brought by defendant herein in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Burke Physical Therapy, PC v State Farm Mut. Auto. Ins. Co., ––– Misc 3d ––––, 2024 NY Slip Op 24111, *3-4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff's contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff's “amended” cross-motion for summary judgment.

Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.

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