Opinion
2006-325 K C, 2006-325 K C.
Decided on April 24, 2007.
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 the judgment entered pursuant thereto on January 30, 2006 (CPLR 5501 [c]). The judgment, awarding plaintiff the principal sum of $1,661.40, brings up for review, as limited by the brief, the order, entered December 16, 2005, insofar as it granted plaintiff's motion for summary judgment in a sum in excess of $540.
PRESENT: WESTON PATTERSON, J.P., RIOS and BELEN, JJ.
Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated, plaintiff's motion for summary judgment granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $ 540, and matter
remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees thereon and, upon searching the record, summary judgment granted in favor of defendant dismissing plaintiff's remaining claims.
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 remaining disputed claims ( Merritt Hill Vineyards v Windy Hgts. Vineyard, Inc., 61 NY2d 106).
Weston Patterson, J.P., and Belen, J., concur.
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 granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $ 540, in my opinion, we should not search the record to grant summary judgment in favor of defendant dismissing plaintiff's remaining claims. Rather, as to those claims, 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