Weinberg v Auto One Ins. Co. (2015 NY Slip Op 51746(U))

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated December 10, 2013. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff, an attorney who had represented a medical provider in various first-party no-fault actions, commenced this action to recover payment of a 12½% contingent fee, in the amount of $893.76, pursuant to a written attorney’s fee agreement with the provider. The complaint stated that the provider and defendant had settled some of the actions in or about June 2012, and that the attorney’s fee, among other things, was to be made payable to the order of plaintiff and mailed to his office. The complaint further stated that, in January 2013, plaintiff, after having received no payment, called defendant and was informed that all of the settlement monies, including the attorney’s fee, had been forwarded to the Internal Revenue Service (IRS) due to a tax levy on the provider. The complaint indicated that, notwithstanding a limit on attorney’s fees for no-fault actions, plaintiff was entitled to an excess award because of his “extraordinary” services. The complaint asserted that, because plaintiff’s lien on the principal settlement involving the provider was superior to a claim by the IRS, defendant improperly remitted the money to the IRS and was, therefore, liable to plaintiff in the sum of $893.76.

Defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), on the grounds that the complaint failed to state that plaintiff had given defendant notice of a contingency agreement prior to commencement of the action, in accordance with Judiciary Law § 475-a, and that an attorney’s fee for work in a no-fault action is limited to the statutory attorney’s fee provided by Insurance Law § 5106 (a) and the regulations promulgated thereto. Plaintiff opposed defendant’s motion and now appeals from an order of the District Court which granted defendant’s motion to dismiss the complaint.

In considering a motion to dismiss a complaint for failure to state a cause of action (CPLR 3211 [a] [7]), a court must accept the facts alleged in the complaint as true and give the plaintiff the benefit of all favorable inferences to determine whether the facts as alleged fit within any cognizable legal theory (see Canzona v Atanasio, 118 AD3d 837 [2014]; Breytman v Olinville Realty, LLC, 54 AD3d 703 [2008]; see also Leon v Martinez, 84 NY2d 83 [1994]).

Applying these principles here, the District Court properly granted defendant’s motion to [*2]dismiss the complaint, as the complaint failed to state a cause of action for recovery of contingent attorney’s fees. The complaint acknowledged the limitations on attorney’s fees in no-fault disputes, pursuant to 11 NYCRR 65-4.6 (g), which prohibits an attorney from demanding, requesting or receiving from the insurer “any payment of fees not permitted by this section” (11 NYCRR 65-4.6 [g]). Notably, in opposition to defendant’s motion to dismiss the complaint, plaintiff conceded that he had received statutory attorney’s fees as counsel for the provider in the settled first-party no-fault actions. The complaint merely set forth the conclusory allegation that plaintiff was entitled to collect attorney’s fees “in excess of the limitations set forth in” 11 NYCRR 65-4.6 (g) because his services were “extraordinary.” There are no factual allegations in the complaint sufficient to state a cause of action against the insurer for the recovery of contingent attorney’s fees beyond those authorized by statute, or to otherwise manifest any cause of action cognizable at law (see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094 [2011]; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793 [2011]; Mayer v Sanders, 264 AD2d 827 [1999]).

Accordingly, the order is affirmed.

Tolbert, J.P., Iannacci and Connolly, JJ., concur.