November 19, 2009

Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 52374(U))

https://www.beynensonlaw.com/case-law/great-wall-acupuncture-p-c-v-geico-ins-co-2009-ny-slip-op52374u/

Court
Appellate Term, Second Department
Decided
November 19, 2009
Citation
2009 NY Slip Op 52374(U) · 25 Misc 3d 138(A)
Posture
Trial
Issues
Other
Cite as
Great Wall Acupuncture, P.C. v Geico Ins. Co., 25 Misc 3d 138(A), 2009 NY Slip Op 52374(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's appeal was dismissed because the entered judgment awarded the full balance requested, leaving it unaggrieved. The Appellate Term, Second Department, applied CPLR 5511 and Lowery v Lamaute. After a nonjury trial concerning six claims, including the acupuncture reimbursement rate, the Civil Court's decision directed an award of $322.30. The entered judgment nevertheless awarded $1,718.40, the full requested balance. Because the provider received all the relief sought in the judgment, it could not maintain the appeal.

Reported in New York Official Reports at Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 52374(U))

[*1]
Great Wall Acupuncture, P.C. v Geico Ins. Co.
2009 NY Slip Op 52374(U) [25 Misc 3d 138(A)]
Decided on November 19, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1274 Q C.
Great Wall Acupuncture, P.C. a/a/o NELLY TUPAS, Appellant,

against

Geico Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered May 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,718.40.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the matter went to trial on plaintiff’s six claims with respect to, inter alia, the issue of the rate of reimbursement for acupuncture treatments provided by licensed acupuncturists. In its decision after trial, the Civil Court determined that, in accordance with Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), 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 the acupuncture sessions, and that the appropriate rate was $29.30 per session. Defendant had reimbursed plaintiff for two of the claims at the rate of $29.30. The Civil Court determined that plaintiff was also entitled to reimbursement on the remaining claims, two of which defendant had denied on the ground that plaintiff had failed to timely submit the claims, and two of which defendant had denied on the basis of lack of medical necessity. Accordingly, the Civil Court granted judgment to plaintiff in the sum of $322.30. However, judgment was entered on May 9, 2008 in the principal sum of $1,718.40. Plaintiff appeals from the judgment.

Since the judgment awarded plaintiff the full balance which it had requested,
$1,718.40, plaintiff is not aggrieved thereby, and the appeal must be dismissed (see CPLR 5511; Lowery v Lamaute, 40 AD3d 822 [2007]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2009

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