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WHO?August 5, 2011

W.H.O. Acupuncture, P.C. v Geico Gen. Ins. Co., 2011 NY Slip Op 51408(U)(App. Term 2d Dept. 2011)

Three statements of law.

One you knew – unless you are (1) arguing that the acupuncture fee schedule is unconstitutional, and (2) failing to inform Schneiderman’s office in violation of the Executive Law that you are challenging the constitutionality of a statute or regulation.  Seriously – and you know who you are – stop already.

The second one is interesting because an appeal of an order finding liability constitutes  an appealable paper notwithstanding a subsequent order that modifies the awarded damages.

Last – a judgment should not be prepared by the clerk and should be served on the adversary.  I know there is case law out there refuting the latter point – I need to find it.  As to the former point – someone should call chief clerk Baer since the Civil Courts, as a matter of course,  have been preparing judgments in all cases for about 4-5 years already.

“We note that the April 28, 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 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.”

“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”

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