Veraso Med. Supply Corp. v. State Farm Mut. Auto. Ins. Co.

Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51232(U)) [*1] Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. 2022 NY Slip Op 51232(U) [77 Misc 3d 131(A)] Decided on November 18, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on November 18, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2020-349 K C Veraso Medical Supply Corp., as Assignee of Fernandez, Mariel, Appellant, against State Farm Mutual Automobile Ins. Co., Respondent. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. James F. Butler & Associates (Mohammad Q. Rubbani of counsel), for respondent. Appeal from a judgment of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 19, 2018. The judgment, after a nonjury trial, dismissed the complaint. ORDERED that the judgment is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to the issues of whether plaintiff had fully responded to defendant's verification requests and whether verification was outstanding prior to the issuance of the denial. Following the trial, the Civil Court dismissed the complaint, finding that defendant sustained its burden of establishing that plaintiff had not fully responded to defendant's verification requests and that verification was outstanding prior to the issuance of the denial. In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). In the present case, the record supports the finding of the Civil Court, based upon its assessment of the proof adduced at trial, that plaintiff did not fully respond to defendant's verification requests (see CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co., 58 Misc 3d 138[A], 2017 NY Slip Op 51839[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]) and that defendant had timely denied plaintiff's claim on that ground (see 11 NYCRR 65-3.5 [o]). Consequently, we find no basis to disturb the Civil Court's determination. Accordingly, the judgment is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 18, 2022