Burke Physical Therapy, P.C., as Assignee of Caraballo, Joshua, Appellant, v. State Farm Mutual Automobile Ins. Co., Respondent. (2026)

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 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