In de novo Proceeding, Attorney fees are Fixed DY Court, 'Not Regulation 68: Matter of Country-Wide Ins. Co. v TC Acupuncture P.C.

AuthorRogak, Lawrence N.
Position[COURTSIDE]

Master arbitration awards in NY PIP may be reviewed de novo by a court. In such cases, the claimant's attorney fees are not based on the limits in Regulation 68, but instead are determined by the court based on a "reasonableness" standard.--LNR

* 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 [section] 65-4.100)(4).

The court fa iled to con si der 11 NYCRR 65 -4.10(j)(4), wh ich ap plies to this appeal of a mas ter 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 [section] 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." 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...

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