IN RE: 563 GRAND MEDICAL (2026)

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated February 18, 2020, Country–Wide Ins. Co. appeals from (1) an order of the Supreme Court, Kings County (Lillian Wan, J.), dated November 10, 2021, and (2) a money judgment of the same court dated November 15, 2023.  The order granted the motion of 563 Grand Medical, P.C., for an award of additional attorneys' fees pursuant to 11 NYCRR 65–4.10(j)(4).  The money judgment, upon the order, awarded 563 Grand Medical, P.C., additional attorneys' fees in the sum of $1,950, plus costs and disbursements.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the money judgment is reversed, on the law, the motion of 563 Grand Medical, P.C., for an award of additional attorneys' fees pursuant to 11 NYCRR 65–4.10(j)(4) is denied, and the order is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the order must be dismissed because the order was superseded by the money judgment dated November 15, 2023 (see Burns v. Burns, 229 A.D.3d 675, 676, 216 N.Y.S.3d 188;  Christopulos v. Christopulos, 209 A.D.3d 970, 175 N.Y.S.3d 732).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the money judgment (see Burns v. Burns, 229 A.D.3d at 676, 216 N.Y.S.3d 188).

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated February 18, 2020, which affirmed an arbitration award that had denied Grand Medical's claims against Country–Wide Ins. Co. (hereinafter Country–Wide) for no-fault insurance benefits.  In an order dated December 21, 2020, the Supreme Court, among other things, granted that branch of the petition which was to vacate the master arbitration award, denied Country–Wide's cross-petition to confirm the master arbitration award, and referred the matter to arbitration for further proceedings.

Grand Medical moved for an award of additional attorneys' fees pursuant to 11 NYCRR 65–4.10(j)(4).  In an order dated November 10, 2021, the Supreme Court granted the motion, and a money judgment dated November 15, 2023, was issued awarding Grand Medical additional attorneys' fees in the sum of $1,950, plus costs and disbursements.  Country–Wide appeals.

Insurance Law § 5106(a) provides:  “If a valid claim or portion was 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 limitations promulgated by the superintendent in regulations.”  The relevant regulation providing such “[l]imitations on attorneys' fees pursuant to section 5106 of the Insurance Law,” specifies that “[t]he attorneys' fee for services rendered ․ in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65–4.10[j][4] ).

Thus, under the statute and its implementing regulation, “a claimant is entitled to recover attorney's fees where a ‘valid claim or portion’ was denied or overdue” (Presbyterian Hosp. in the City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 278, 660 N.Y.S.2d 536, 683 N.E.2d 1, quoting Insurance Law § 5106[a] ).  Here, however, at the time that Grand Medical moved for an award of additional attorneys' fees pursuant to 11 NYCRR 65–4.10(j)(4), no determination had been made that Grand Medical had a valid claim that was denied or overdue (cf.  Matter of American Tr. Ins. Co. v. Comfort Choice Chiropractic, P.C., 236 A.D.3d 782, 782–783, 229 N.Y.S.3d 202;  Acuhealth Acupuncture, P.C. v. Country–Wide Ins. Co., 170 A.D.3d 1168, 94 N.Y.S.3d 886;  Matter of GEICO Ins. Co. v. AAAMG Leasing Corp., 148 A.D.3d 703, 704–706, 51 N.Y.S.3d 93).  Rather, the Supreme Court had merely decided that the claims should not have been denied for failure to prove standing and the matter was referred to arbitration for further proceedings on Grand Medical's claims for no-fault insurance benefits.  Under those circumstances, Grand Medical did not demonstrate its entitlement to an award of additional attorneys' fees pursuant to 11 NYCRR 65–4.10(j)(4) (see Matter of Fast Care Med. Diagnostics, PLLC/PV v. Government Empls. Ins. Co., 161 A.D.3d 1149, 1151, 78 N.Y.S.3d 360;  see also Bay Needle Care Acupuncture, P.C. v. Country Wide Ins. Co., 176 A.D.3d 695, 696, 112 N.Y.S.3d 209).

Accordingly, we reverse the money judgment and deny Grand Medical's motion for an award of additional attorneys' fees pursuant to 11 NYCRR 65–4.10(j)(4).

Grand Medical's remaining contention is without merit.

IANNACCI, J.P., WOOTEN, DOWLING and MCCORMACK, JJ., concur.