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December 7, 2016

City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51793(U))

https://www.beynensonlaw.com/case-law/city-care-acupuncture-p-c-v-allstate-prop-cas-ins-co-2016-ny-slipop-51793u/

Court
Appellate Term, Second Department
Decided
December 7, 2016
Citation
2016 NY Slip Op 51793(U)
Posture
Default or vacatur
Outcome
Provider prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Interest and attorney fees
Cite as
City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51793(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2016)

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.

Statutory no-fault attorney fees are not discretionary or dependent on the actual value of counsel's services. After an insurer defaulted, the providers received benefits and interest but were denied fees for lack of a detailed services affidavit. Under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 (former (e)), the applicable fee was 20 percent of benefits plus interest, capped at $850; the recovery entitled the providers to that maximum. The Appellate Term, Second Department, reversed and remitted for a new judgment with calculated interest and the fee. Under CPLR 5019 (a), the judgment must name only the insurer because the action against the assignor had been discontinued. The separate appeal from the decision was dismissed under UCCA 1702.

Reported in New York Official Reports at City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51793(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

City Care Acupuncture, P.C., Jamaica Wellness Medical, P.C., and MK Chiropractic, P.C., as Assignees of Edzer Louis-Jean, Appellants,

against

Allstate Property and Casualty Insurance Company, Respondent, and Edzer Louis-Jean, Defendant.

Appeal, on the ground of inadequacy, from a decision after inquest of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), dated January 13, 2015, and from a judgment of the same court entered April 21, 2015. The judgment, entered pursuant to the decision after inquest, upon awarding plaintiffs the principal sum of $4,491.47, together with interest, costs and disbursements, failed to award plaintiffs statutory attorney’s fees.

ORDERED that so much of the appeal as is from the decision is dismissed on the ground that no appeal lies from a decision (see UCCA 1702); and it is further,

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate Property and Casualty Insurance Company only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Plaintiffs commenced this action in October 2014 to recover assigned first-party no-fault benefits for services that had been provided from February through July 2012, and statutory attorney’s fees thereon. Defendant Allstate Property and Casualty Insurance Company (Allstate) defaulted. Plaintiffs’ counsel subsequently admitted that defendant Edzer Louis-Jean had not been served with process. Plaintiffs, in effect, moved to enter a default judgment and submitted a proposed judgment to the City Court of Yonkers. Following an inquest, the City Court awarded a default judgment to plaintiffs in the principal sum of $4,491.47, together with interest and statutory costs and disbursements. In its decision, the court noted that plaintiffs had discontinued the action as against Edzer Louis-Jean individually. The court denied the branch of plaintiffs’ motion which sought statutory attorney’s fees, finding that plaintiffs had failed to [*2]demonstrate their “statutory entitlement to attorney’s fees . . . and failed to submit a detailed affidavit” of the services rendered by plaintiffs’ counsel. A judgment was entered against defendants Allstate and Edzer Louis-Jean, awarding plaintiffs the principal sum of $4,491.47 on their claims, plus statutory interest, costs, and disbursements. Plaintiffs appeal from the decision and judgment, arguing that the court erred in failing to award them statutory attorney’s fees.

So much of the appeal as is from the decision is dismissed, as no appeal lies from a decision (see UCCA 1702). The issues raised on the appeal from the decision are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Contrary to the determination of the City Court, attorney’s fees, as sought here by plaintiffs, are not discretionary or dependent upon the actual value of the services rendered by plaintiffs’ counsel. Rather, the attorney’s fees to which plaintiffs are entitled are statutory (Insurance Law § 5106 [a]), and, pursuant to the no-fault regulations in effect at the relevant time, equaled “20 percent of the amount of first-party benefits, plus interest thereon, . . . subject to a maximum fee of $850” (11 NYCRR 65-4.6 [former (e)]; see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).

In the present case, as the City Court awarded a default judgment in favor of plaintiffs for first-party no-fault benefits in the principal sum of $4,491.47, plaintiffs are entitled to the maximum statutory attorney’s fees of $850 (cf. 11 NYCRR 65-4.6 [d] [effective July 23, 2014, the maximum possible award of attorney’s fees in this type of action was increased to $1,360]). However, while the decision of the City Court recognized that plaintiffs had discontinued the action as against Edzer Louis-Jean, the judgment named both Allstate and Louis-Jean as debtors. “Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls” (Kim v Schiller, 112 AD3d 671, 674 [2013]; see Green v Morris, 156 AD2d 331 [1989]). Such an inconsistency may be corrected on appeal, pursuant to CPLR 5019 (a) (see Kim, 112 AD3d at 674; Green, 156 AD2d at 331; Clifford v Nationwide Custom Servs., Inc., 51 Misc 3d 132[A], 2016 NY Slip Op 50459[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Accordingly, the judgment is reversed and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Brands, J.P., Marano and Tolbert, JJ., concur.


Decision Date: December 07, 2016

Cited in this decision

A label shows how this decision treated the case it cites.

  • LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 02481) FollowedNo-fault attorney fees are calculated on the aggregate bills for each insured, and an untimely denial does not defeat interest tolling.

Cited by

A label shows how the later decision treated this one.

  • Quick Health Pharm. Corp. v American Tr. Ins. Co. (2025 NY Slip Op 25038) FollowedAttorney's fees for a successful article 75 challenge to a no-fault award are not subject to the arbitration fee cap.

Similar decisions

  • A.M. Med. Servs., P.C. v Allstate Ins. Co. (2011 NY Slip Op 50436(U))A clerk's error calculating statutory no-fault attorney fees may be corrected under CPLR 5019 when the calculation is ministerial.
  • LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 10443)Attorney fees for no-fault claims are calculated per claim rather than per assignor under Insurance Law § 5106 (a).
  • A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp. (2017 NY Slip Op 50676(U))The providers' postjudgment enforcement issues were not novel or unique enough to warrant excess no-fault attorney fees.
  • Fortune Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 28218)No-fault attorney's fees are calculated per claim, with the $850 maximum applied to each claim rather than the entire action.
  • American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01750)The provider's attorney fee award was reversed because its basis was unexplained and the record contained conflicting evidence.
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