May 28, 2019

Matter of Country-Wide Ins. Co. v TC Acupuncture P.C. (2019 NY Slip Op 04087)

https://www.beynensonlaw.com/case-law/matter-of-country-wide-ins-co-v-tc-acupuncture-p-c-2019-ny-slip-op04087/

Court
Appellate Division, First Department
Decided
May 28, 2019
Citation
2019 NY Slip Op 04087 · 172 AD3d 598
Posture
Other motion
Outcome
Split result
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Interest and attorney fees
Cite as
Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 172 AD3d 598 (1st Dept 2019)

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.

Attorney fees for judicial review of a master arbitration award are fixed by the court under 11 NYCRR 65-4.10 (j) (4). The Appellate Division, First Department, reversed the fee order, vacated the fee award, and remanded for calculation of reasonable fees under that regulation. Supreme Court had instead applied 11 NYCRR 65-4.6, governing fees at an initial arbitration, and calculated fees as a percentage of the arbitration demand. Insurance Law § 5106 (a) authorizes reasonable fees for securing payment of overdue benefits, subject to regulatory limitations. The recalculated fees would apply only to the appeal; the provider's requests for additional underlying arbitration fees under 11 NYCRR 65-4.6 (c) or (d) were rejected as unpreserved.

Reported in New York Official Reports at Matter of Country-Wide Ins. Co. v TC Acupuncture P.C. (2019 NY Slip Op 04087)

Matter of Country-Wide Ins. Co. v TC Acupuncture P.C.
2019 NY Slip Op 04087 [172 AD3d 598]
May 28, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 3, 2019

[*1]

 In the Matter of Country-Wide Insurance Company, Respondent,
v
TC Acupuncture P.C., as Assignee of Alexander Oneal, Respondent-Appellant.

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Thomas Torto, New York (Jason Levine of counsel), for respondent.

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered June 22, 2017, which awarded attorneys’ fees in the amount of $749.38, unanimously reversed, on the law, without costs, the award vacated, and the matter remanded for a calculation of reasonable attorneys’ fees in accordance with 11 NYCRR 65-4.10 (j) (4).

The court failed to consider 11 NYCRR 65-4.10 (j) (4), which applies to this appeal of a master arbitration award. Instead, the court applied 11 NYCRR 65-4.6, the regulation applicable to attorneys’ fee awards at an initial arbitration, and calculated the award as 20% of the arbitration demand of $3,746, awarding $749.38.

Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “ ’the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations’ ” (Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology, 143 AD3d 536, 537 [1st Dept 2016]). Here, in a proceeding for judicial review of an award by a master arbitrator, the attorneys’ fee award “shall be fixed by the court adjudicating the matter” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017], citing Insurance Department Regulations [11 NYCRR] § 65-10 [j] [4]).

Because this is an appeal from a master arbitration award, we remand the matter for a calculation of fees in accordance with 11 NYCRR 65-4.10 (j) (4) (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). We note that the fees would only apply to this appeal.

In addition, we reject as unpreserved appellant’s claims that it is entitled to further fees for the underlying arbitration under 11 NYCRR 65-4.6 (c) or (d). Concur—Friedman, J.P., Gische, Tom, Webber, Gesmer, JJ.

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