The following electronically filed documents read on this motion by petitioner for an Order fixing petitioner’s attorney’s fees pursuant to 11 NYCRR §65-4.10 (j) (4): Papers Numbered Notice of Motion-Affirmation-Exhibits EF 30 – 40 Affirmation in Opposition EF 41 – 42 Affirmation in Reply EF 43 These proceedings arose out of a motor vehicle accident that occurred on or about March 7, 2013. Petitioner provided medical services to an infant, “PV”, from April 4, 2013 through May 1, 2013. Petitioner sought reimbursement from respondent, and submitted proofs of claim to respondent totaling $1,758.40. Respondent denied these proofs of claim based upon lack of medical necessity. Petitioner filed for arbitration against respondent for first party no-fault benefits in the amount of $1,758.40. On October 10, 2014, arbitrator Donna Ferrara issued a decision, denying petitioner’s claim in its entirety without prejudice because petitioner brought the arbitration involving an infant without first obtaining a court order as is required by CPLR §1209. Petitioner then filed for a Master Arbitration Appeal of this Award. On January 16, 2015, Master Arbitrator Frank G. Godson affirmed the lower Award of Donna Ferrara and found, inter alia, that “the claim should be brought by applicant as assignee of the parent.” Petitioner commenced this Article 75 proceeding for an order, pursuant to CPLR §7511, vacating a Master Arbitration Award of arbitrator Frank G. Godson, dated January 16, 2015, which affirmed the arbitration award rendered by arbitrator Donna Ferrara. This Court granted the petition, vacated the arbitration awards, and remanded this matter to proceed to arbitration on the issue of medical necessity. This Court also denied petitioner’s application for attorney’s fees “at this time”. Respondent filed an appeal of this Court’s decision. Petitioner cross-appealed the denial of attorney’s fees. Briefs were submitted and oral arguments were heard on January 16, 2018. The Appellate Division, Second Department issued a decision on May 30, 2018, affirming this Court’s award directing that the matter be remanded to arbitration to be heard on the merits. The Appellate Division also determined that petitioner did not demonstrate its entitlement to an award of attorney’s fees as the arbitration did not reach the issue of whether the subject claims were overdue. The matter was remanded back to the arbitrator and a hearing was conducted on October 23, 2018. On November 26, 2018, the arbitrator determined that petitioner was entitled to reimbursement of its overdue No Fault claim in the amount of $878.67 plus statutory interest, attorney’s fees pursuant to 11 NYCRR 65-4.6 for the services rendered at the lower arbitration level, and the arbitration filing fee. Petitioner then made a motion to the Appellate Division for attorney’s fees for the work performed on the appeal of this Court’s decision. The Appellate Division denied petitioner’s motion without prejudice to seek the relief requested in this Court. Petitioner now moves this Court for attorney’s fees pursuant to 11 NYCRR 65-4.10 (j)(4) for the legal services performed in connection with opposing respondent’s appeal of this Court’s decision along with the attorney’s fees owed for the initial petition pursuant to CPLR Article 75. Insurance Law §5106 provides that the appellant is entitled to recover the “attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” 11 NYCRR §65-4.10 (j) (4) provides that the “attorney’s fee for services rendered in connection with a court adjudication dispute de novo, as provided in section 5106(c) of the Insurance Law, or in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter.” Here, petitioner’s counsel contends that counsel provided 21.6 hours of uncompensated legal services responding to respondent’s appeal. In support of such contention, petitioner’s counsel submits affidavits from William Purdy, Esq., Jennifer Howard, Esq., and Justin Skaferowsky, Esq., each detailing the legal work performed. Petitioner’s counsel seeks $7,675 for attorney’s fees for work performed at the Appellate Division, Second Department. Petitioner’s counsel also submits affidavits from Justin Skaferowsky, Esq., Mariel Dumas-Wenckebach, Esq., and Joshua Sussman, Esq., detailing the 9.5 hours of legal work performed in the Article 75 proceeding. Petitioner’s counsel seeks $2,850 in attorney’s fees for services performed regarding the appeal of the master arbitration award. Petitioner seeks a total amount of $10,525 in reasonable attorney’s fees. In opposition, respondent contends that $10, 5255 is not warranted because the Insurance Law and Regulations do not permit such an excessive amount. Respondent contends that 11 NYCRR §65-4.1 (j) (4) should be read with 65-4.1 (j) (5) which provides that “[n]o attorney shall demand, request or receive from the insurer any payment or fee in excess of the fees permitted by this subdivision for services rendered with respect to a no-fault master arbitration dispute.” Thus, based upon NYCRR §65-4.10 (j) (2) (I), respondent contends that the maximum fee is $650. Additionally, respondent contends that the same work is involved in both the Article 75 proceeding and in the appeal. Upon a review of the motion papers, opposition, and reply thereto, this Court finds as follows: Based upon a plain reading of the regulations, the attorney fee limitation of $650 does not apply to the fee requested herein. 11 NYCRR §65-4.10 (j) (4) specifically provides for fees sought regarding “a court appeal from a master arbitration award and any further appeals”. “The term ‘court appeal’ applies to a proceeding such as this, taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award” (Matter of Geico Ins. Co. v. AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept. 2017]). Moreover, this Court finds that petitioner’s counsel’s affidavits detailing the legal work performed in this matter as well as the appeal are credible and support the reasonable fee sought herein. Accordingly, and for the reasons stated above, it is hereby ORDERED, that the motion is granted, the attorney’s fees for the work performed are fixed at $10,525.00, and ISRAEL, ISRAEL & PURDY LLP, as attorneys for the petitioner, are entitled to attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the amount of $10,525.00. Dated: February 7, 2020
