A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2010 NY Slip Op 50264(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered April 15, 2008, deemed from a judgment of the same court entered June 16, 2008 (see CPLR 5512 [a]). The judgment, insofar as appealed from as limited by the brief, entered pursuant to the April 15, 2008 order granting plaintiff’s motion for leave to renew defendant’s prior motion and, upon such renewal, denying defendant’s prior motion to modify plaintiff’s proposed judgment by reducing the award to plaintiff of attorney’s fees set forth in plaintiff’s proposed judgment, awarded plaintiff $1,745.47 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is modified by reducing the award of attorney’s fees to plaintiff to the sum of $850; as so modified, the judgment is affirmed without costs, so much of the order entered April 15, 2008 as, upon renewal, denied defendant’s motion to reduce the proposed judgment is vacated and defendant’s motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff alleged five unpaid claims as its cause of action. The Civil Court granted plaintiff’s motion for summary judgment as to four of the claims. Following this court’s affirmance of the order (A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 13 Misc 3d 126[A], 2006 NY Slip Op 51662[U] [App Term, 2d & 11th Jud Dists 2006]), defendant moved to modify plaintiff’s proposed judgment to limit the award of attorney’s fees to the sum of $850, rather than the proposed total of $1,745.47 sought therein, which fee had been calculated on a per claim basis. The Civil Court granted defendant’s motion. Thereafter, in light of the opinion of the Appellate Division, Third Department, in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290 [2007]), the Civil Court granted plaintiff’s motion for leave to renew defendant’s motion and, upon renewal, allowed the fees as previously proposed by plaintiff. Defendant appeals from that order. Plaintiff subsequently entered a judgment which included the award of $1,745.47 as attorney’s fees, from which judgment this appeal is deemed taken (CPLR 5512 [a]).

In LMK Psychological Servs., P.C. v State Farm Mut. Aut. Ins. Co. (12 NY3d 217, 222-223 [2009]), the Court of Appeals reversed the Appellate Division and accepted the opinion of [*2]the Superintendent of Insurance (Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]), which “interpreted a claim to be the total medical expenses claimed in a cause of action pertaining to a single insured, and not . . . each separate medical bill submitted by the provider.” As a result, the Court of Appeals held that attorney’s fees are to be calculated based “on the aggregate of all bills for each insured,” to a maximum of $850 (LMK Psychological Servs., P.C., 12 NY3d at 223).

Accordingly, as there is but one insured involved herein, the award of attorney’s fees to plaintiff is reduced to the sum of $850.

Pesce, P.J. Weston and Steinhardt, JJ., concur.
Decision Date: February 19, 2010