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W.H.O. Acupuncture, P.C. As Assignee of Dina Berry v. Geico Indemnity Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


August 4, 2011

W.H.O. ACUPUNCTURE, P.C. AS ASSIGNEE OF DINA BERRY,
RESPONDENT,
v.
GEICO INDEMNITY COMPANY,
APPELLANT.

W.H.O. Acupuncture, P.C. v Geico Indem. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2011

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 18, 2009, deemed from a judgment of the same court entered February 18, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 18, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $867.10.

ORDERED that the judgment is reversed, without costs, the order entered December 18, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had properly reimbursed plaintiff for services rendered by plaintiff's licensed acupuncturist to plaintiff's assignor. By order dated December 18, 2009, the Civil Court granted plaintiff's motion for summary judgment, awarding plaintiff the principal sum of $867.10, and denied defendant's cross motion for summary judgment dismissing the complaint. Defendant filed a notice of appeal from the order. A judgment awarding plaintiff the principal sum of $867.10 was subsequently entered on February 18, 2010, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Subsequent to the entry of the judgment, plaintiff, upon discovering a mathematical error, moved to reduce the sum awarded in the December 18, 2009 order to $258.60. By order entered April 30, 2010, the Civil Court (Carmen R. Velasquez, J.) granted that motion. Contrary to plaintiff's contention on appeal, the entry of the April 30, 2010 order did not affect the appeal from the judgment, which was entered pursuant to the December 18, 2009 order, and has not been amended. We note that the April 30, 2010 order modified the December 18, 2009 order only to the extent of changing the sum awarded. It did not affect the Civil Court's findings of liability as a matter of law, which are the subject of defendant's appeal.

We find that defendant's cross motion for summary judgment dismissing the complaint should have been granted, as it was proper for defendant to use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for services rendered by a licensed acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

We incidentally note that the judgment in this case was improperly prepared and entered by the clerk on his own initiative and that no notice of the entry of the judgment was provided to the parties. Pursuant to CCA 1401, a judgment shall be prepared by a party's attorney and should be prepared by the clerk only upon the request of an unrepresented party, except in the case of a summary proceeding to recover possession of real property.

Accordingly, the judgment is reversed, the order entered December 18, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur. Decision

Date: August 04, 2011

20110804

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