Great Wall Acupuncture v GEICO Gen. Ins. Co.

[*1] Great Wall Acupuncture v GEICO Gen. Ins. Co. 2007 NY Slip Op 50865(U) [15 Misc 3d 137(A)] Decided on April 24, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 27, 2007; it will not be published in the printed Official Reports.

Decided on April 24, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2006-322 K C. NO. 2006-322 K C

Great Wall Acupuncture a/a/o Donald Johmson, Respondent,

against

GEICO General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 16, 2005, deemed an appeal from a judgment entered on January 30, 2006 (CPLR 5501 [c]). The judgment, entered pursuant to the order entered December 16, 2005 granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $2,124.50.

Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated, plaintiff's motion for summary judgment denied and, upon searching the record, summary judgment granted in favor of defendant dismissing the action.

Upon the record presented, for the reasons stated in Great Wall Acupuncture v Geico General Ins. Co. (___ Misc 3d ___, 2007 NY Slip Op ___ [No. 2006-328 K C], decided herewith), and since it is undisputed that defendant has fully paid plaintiff the amounts to which it is entitled under the fee schedules for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (Merritt Hill Vineyards v Windy Hgts. Vineyard, Inc., 61 NY2d 106 [1984]). [*2]

Weston Patterson, J.P., and Belen, J., concur.

Rios, J., concurs in part and dissents in part in a separate memorandum.

Rios, J., concurs in part and dissents in part in the following memorandum:

Although I am in agreement with the majority that the judgment should be reversed, the order granting plaintiff's motion for summary judgment vacated, and plaintiff's motion for summary judgment denied, in my opinion, we should not search the record to grant summary judgment in favor of defendant dismissing the action. Rather, the matter should be remanded for a trial on developed facts as to which specific services were provided by plaintiff to its assignor. While it is true that Workers' Compensation fee schedules have been established for acupuncture services performed by a chiropractor, the record is silent as to whether the subject billing refers to treatment which is usually rendered by a chiropractor within the scope of his or her chiropractic license (see Education Law § 6551), or whether the billed services are for treatment for which a license as an acupuncturist is needed (see Education Law § 8214), in which event, the procedures performed by plaintiff's acupuncturist would be sufficiently dissimilar from those rendered by a chiropractor that the fee schedules established for chiropractors should not be invoked.
Decision Date: April 24, 2007