IN RE: AMERICAN TRANSIT INSURANCE COMPANY (2025)

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, Bay Ridge Surgi–Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 12, 2024.  The judgment, insofar as appealed from, upon an order of the same court dated June 5, 2024, granting the motion of Bay Ridge Surgi–Center, LLC, pursuant to 11 NYCRR 65–4.10(j)(4) for an award of additional attorney's fees to the extent of awarding it additional attorney's fees in the sum of $1,100, awarded Bay Ridge Surgi–Center, LLC, additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4) in the sum of only $1,100.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The petitioner commenced this proceeding against Bay Ridge Surgi–Center, LLC (hereinafter Bay Ridge), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, affirming an arbitration award entered in favor of Bay Ridge.  Bay Ridge cross-petitioned, among other things, pursuant to 11 NYCRR 65–4.10(j)(4) for an award of additional attorney's fees.  In an order dated September 27, 2023, the Supreme Court, inter alia, upon its determination that Bay Ridge was entitled to additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4), granted Bay Ridge leave to file a motion for a determination of the amount of additional attorney's fees to be awarded to Bay Ridge.  Thereafter, Bay Ridge moved pursuant to 11 NYCRR 65–4.10(j)(4) for an award of additional attorney's fees.  The petitioner opposed the motion.  In an order dated June 5, 2024, the court granted the motion to the extent of awarding Bay Ridge additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4) in the sum of $1,100.  Thereafter, the court, upon the order, issued a judgment, among other things, awarding Bay Ridge additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4) in the sum of $1,100.  Bay Ridge appeals.

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 [or her] 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.”  The recoverable attorney's fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney's fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65–4.10[j][4];  see Matter of American Tr. Ins. Co. v. Comfort Choice Chiropractic, P.C., 236 A.D.3d 782, 783, 229 N.Y.S.3d 202).

“ ‘The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court’ ” (Hershfield v. Davidoff, 233 A.D.3d 923, 924, 222 N.Y.S.3d 646, quoting Lancer Indem. Co. v. JKH Realty Group, LLC, 127 A.D.3d 1035, 1035–1036, 8 N.Y.S.3d 356;  see RMP Capital Corp. v. Victory Jet, LLC, 139 A.D.3d 836, 839–840, 32 N.Y.S.3d 231).  “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v. JKH Realty Group, LLC, 127 A.D.3d at 1036, 8 N.Y.S.3d 356;  see Hershfield v. Davidoff, 233 A.D.3d at 924, 222 N.Y.S.3d 646).

Contrary to Bay Ridge's contention, the Supreme Court acted within its discretion in awarding Bay Ridge additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4) in the sum of $1,100, notwithstanding Bay Ridge's submission of an affirmation of its counsel setting forth a fee for work expended in the sum of $4,450 (see People's United Bank v. Patio Gardens III, LLC, 143 A.D.3d 689, 691, 38 N.Y.S.3d 262).  As an initial matter, since Bay Ridge failed to request a hearing on the issue of an award of additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4), and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists’ ” (American Tr. Ins. Co. v. Comfort Choice Chiropractic, P.C., 239 A.D.3d 1, 9, 229 N.Y.S.3d 514, quoting Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 505, 14 N.Y.S.3d 283, 35 N.E.3d 451;  see Matter of Medical Socy. of State of N.Y. v. Serio, 100 N.Y.2d 854, 860, 768 N.Y.S.2d 423, 800 N.E.2d 728), the court was not required to conduct a hearing prior to awarding the additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4) (see Boddie–Willis v. Marziliano, 78 A.D.3d 978, 979, 911 N.Y.S.2d 640).  Moreover, in fixing the fee award, the court acted within its discretion in considering, inter alia, the prevailing rate for similar work and the complexity of the matter at issue (see RMP Capital Corp. v. Victory Jet, LLC, 139 A.D.3d at 839–840, 32 N.Y.S.3d 231).  Under these circumstances, there is no basis to disturb the court's award of additional attorney's fees pursuant to 11 NYCRR 65–4.10(j)(4) in the sum of $1,100.

DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.