March 23, 2015

EMA Acupuncture P.C. v Allstate Ins. Co. (2015 NY Slip Op 50348(U))

https://www.beynensonlaw.com/case-law/ema-acupuncture-p-c-v-allstate-ins-co-2015-ny-slip-op50348u/

Court: Appellate Term, First Department
Decided: March 23, 2015
Citation: 2015 NY Slip Op 50348(U) · 47 Misc 3d 126(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Interest and attorney fees Discovery and procedure

Cite as

EMA Acupuncture P.C. v Allstate Ins. Co., 47 Misc 3d 126(A), 2015 NY Slip Op 50348(U) (App Term, 1st Dept 2015)

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 potential attorney-fee recovery was capped at $850 for consolidated claims involving the same assignor and accident. Under 11 NYCRR 65-4.6 (e), as interpreted in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., fees were calculated on the aggregate of all bills for each insured disputed in an action. The Appellate Term, First Department, affirmed the fee limitation in four consolidated actions involving the same parties. It dismissed the provider's appeal from the consolidation ruling under CPLR 5511 because the provider had expressly consented to consolidation.

Reported in New York Official Reports at EMA Acupuncture P.C. v Allstate Ins. Co. (2015 NY Slip Op 50348(U))

[*1]

EMA Acupuncture P.C. v Allstate Ins. Co.

2015 NY Slip Op 50348(U) [47 Misc 3d 126(A)]

Decided on March 23, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570852/14

EMA Acupuncture P.C. a/a/o Nicole Flynn, Plaintiff-Appellant, –
against
Allstate Insurance Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered December 17, 2012, which granted defendant’s motion to consolidate four related actions and to limit any potential recovery of attorneys’ fees in the consolidated action to $850.

Per Curiam.

Order (Margaret A. Chan, J.), entered December 17, 2012, insofar as appealable, affirmed, with $10 costs.

We sustain so much of the order under review as limited the amount of any recovery of attorneys’ fees to the sum of $850, the maximum allowable pursuant to Insurance Department Regulations [11 NYCRR] § 65-4.6(e). Since this provision provides that attorneys’ fees in a no-fault action are to be calculated based on the “aggregate of all bills for each insured” disputed in any action, up to a maximum of $850 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]), the $850 limit was properly applied to the claims at issue in this consolidated action, all of which involve the same parties and assignor, and arise from the same accident.

Plaintiff’s appeal from that portion of the order granting consolidation must be dismissed, inasmuch as plaintiff expressly “agree[d] to consolidation.” No appeal lies from an order entered on consent of the appealing party (see CPLR 5511; Shteierman v Shteierman, 29 AD3d 810 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 23, 2015

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.

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