Viviane Etienne Med. Care PC v Country-Wide Ins. Co.

[*1] Viviane Etienne Med. Care PC v Country-Wide Ins. Co. 2018 NY Slip Op 28058 Decided on February 24, 2018 Civil Court Of The City Of New York, Kings County Montelione, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 24, 2018
Civil Court of the City of New York, Kings County

Viviane Etienne Medical Care PC, a/a/o Alem Cardenas, Plaintiff,

against

Country-Wide Ins. Co., Defendant.



120832/05



For Plaintiff:

Gary Tsirelman, P.C., by Gary Tsirelman, Esq., 129 Livingston Street, Second & Third Floors, Brooklyn NY 11201

For Defendant:

Jaffe & Koumourdas & Mohavicka, LLP, by Thomas Torto, Esq., Of Counsel, 419 Park Avenue South, New York NY 10016
Richard J. Montelione, J.

Background/History

In this action by a provider to recover assigned first party no-fault benefits, plaintiff moved, inter alia, after a final appellate decision in its favor, for additional attorney's fees pursuant to 11 NYCRR 65-4.6 of "no less than $250,000.00."

The original order of the Honorable Carolyn Wade, dated March 6, 2009, denied plaintiff's motion for summary judgment based upon its failure to establish its prima facie case. Subsequently, the Decision and Order was appealed to the Appellate Term, for the Second, Eleventh and Thirteenth Districts, which affirmed (31 Misc 3d 21, 919 NYS2d 759 [2011]. Thereafter, the Appellate Division in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2d Dept 2013], with two dissenting justices, reversed, holding,

(T)he plaintiff established, prima facie, its entitlement to judgment as a matter of law by demonstrating that its prescribed statutory billing forms used to establish proof of claim (see 11 NYCRR 65-1.1) were mailed to and received by the defendant and that the defendant failed to either timely pay or deny the claims (see Insurance Law § 5106; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d at [*2]1082; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604).[FN1]

The Court of Appeals affirmed. See Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 35 N.E.3d 451, 14 N.Y.S.3d 283, 2015 NY LEXIS 1377, 2015 NY Slip Op 04787.

Arguments of the Parties Regarding Additional Attorney's Fees

For context, the court incorporates by reference its prior interim decision and order dated June 2, 2017 and restates relevant portions summarizing the arguments of respective counsel.

Plaintiff argued, inter alia, that as the legal issue of a medical provider's prima facie showing was an issue that was considered by the Court of Appeals, the same was novel and unique and therefore warrants additional legal fees.

In opposition, defendant contended, inter alia, that plaintiff's application for attorney's fees of "no less than $250,000" is beyond this court's jurisdictional limit, and that nonetheless, plaintiff is not entitled to excess attorney's fees because the issues in this no-fault action were not novel or complex. For example, in support of its appeal to the Appellate Term, plaintiff's counsel served and filed a four-page appellant's brief and when the matter reached the Court of Appeals upon defendant's appeal of the order of the Appellate Division, the Court of Appeals decision began with established principles encompassing a plaintiff medical provider's prima facie case and concluded by predicating its conclusion on the admissibility of an affidavit. In short, defendant argued that the issue of evidentiary proof on a summary judgment motion is not novel or unique and that even if plaintiff's counsel "expended a great deal of 'time, money and effort' on this case it is not enough by itself to warrant the award of additional attorney's fees."

As to additional attorney's fees in matters involving a claim for first-party no-fault benefits, Section 65-4.6 of Insurance Regulation 68-D governs the limitations of the same. The applicable sections read as follows [FN2] :

(e) the attorney's fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850.(f) Notwithstanding the limitations listed in this section, if the arbitrator or a court determines that the issues in dispute were of such a novel or unique nature as to require extraordinary skills or services, the arbitrator or court may award an attorney's fee in excess of the limitations set forth in this section. An excess fee award shall detail the specific novel or unique nature of the dispute which justifies the award. (Emphasis added).

As was observed in Maxwell v State Farm Mut. Auto. Ins. Co., 115 AD2d 190, 495 N.Y.S.2d 259 (App. Div. 3rd Dept 1985):

The focus on the excess award determination is not necessarily on the results achieved [*3]but on the issues presented, i.e., whether they are novel and/or unique and necessitate extraordinary efforts on the attorney's behalf .... [In this case] the primary issues were settled on well-established rules of contract law and statutory construction. While counsel is to be commended for his efforts, the fact remains that the issues were not so novel or unique as to justify an excess fee award.

In Dumlao v State Farm Ins. Co., 173 AD2d 517, 570 N.Y.S.2d 119 (App. Div. 2nd Dept. 1991), the Court held that the issue of whether the injury was caused by an accident covered under the policy or whether it resulted from preexisting arthritic condition, was not sufficiently unique to warrant departure from the maximum attorney fee provided for under the insurance regulation.

In the instant matter, the issue of whether an affidavit of service from a third-party billing company is sufficient to establish plaintiff-medical provider's prima facie case — i.e., entitlement to reimbursement for assigned first-party no-fault benefits-was ultimately certified by the Appellate Division to the Court of Appeals. Inasmuch as the Court of Appeals accepted the certified question, this court found that the issue presented is sufficiently novel so as to warrant consideration of additional attorney's fees in accordance with 11 NYCRR 65-4.6.[FN3]

As such, a hearing was warranted to determine additional attorney's fees. Parenthetically, plaintiff's counsel's contention that an attorney fee comparatively large for a modest principal award is appropriate based upon In re Hempstead Gen. Hosp. v Nat'l Grange Mut. Ins. Co., 179 AD2d 645 (2nd Dept 1992) is misplaced. The appropriateness of an increased attorney's fee in excess of $850 will be determined based upon applicable considerations of a reasonable attorney's fee (see RMP Capital Corp. v. Victory Jet, LLC, 139 AD3d 836, 32 N.Y.S.3d 231 [App. Div. 2016] "the award of attorney's fees, whether pursuant to agreement or statute, must be reasonable and not excessive").

In Rahmey v Blum, 95 AD2d 294 (2d Dept 1983) which is a seminal case on the calculation of a reasonable attorney's fee, the Court laid out an "analytical framework .to aid the courts in computing a reasonable attorney's fee." (See also Law Office of Thaniel J. Beinert v. Litinskaya, 43 Misc 3d 1205[A], 990 N.Y.S.2d 437 [Civ. Ct. 2014]).

The court in Ousmane v. City of New York, 22 Misc 3d 1136(A); 880 N.Y.S.2d 874; 2009 NY Misc. LEXIS 574 2009 NY Slip Op 50468(U); 241 N.Y.L.J. 62 (NY Cty. Supt. Ct. 2009), which utilized the lodestar method, as elaborated in Rahmey, of determining the reasonableness of awarding attorney's fees and that methodology is expressed as follows:

A. Hours Reasonably ExpendedThe first step to be taken in arriving at a fair and appropriate award of attorneys' fees [*4]under the lodestar method is to determine whether the number of hours claimed were reasonably 'expended from contemporaneous time sheets.' Becker v. Empire of America Federal Savings Bank, 177 AD2d 958, 577 N.Y.S.2d 1001 (4th Dept 1991); see also Rahmey, 95 AD2d at 300-301. The court need not automatically accept inadequately documented hours or those hours which reflect 'padding, i.e., hours that are excessive or otherwise unnecessary.' Rahmey, 95 AD2d at 301. The following factors are also to be considered in assessing the reasonable hours worked: the extent to which the hours reflect inefficiency or duplicative work; legal work versus non-legal work, investigations, and other work performed by non-lawyers; time spent in court differentiated from out-of-court efforts; and the court's own knowledge, experience and expertise as to the time required to complete a similar task. Id.; see also Matter of Spingarn, 164 Misc 2d 891, 894, 626 N.Y.S.2d 650 (Sup Ct, NY County 1995).

Regarding the hourly fee charged by counsel making the application for attorney's fees, the court in Carroll v Weill, 2008 NY Misc. LEXIS 9409; 2008 NY Slip Op 32512(U) (Supt. Ct. NY Cty., Ramos, J.S.C. 2008), stated,

To determine the reasonable hourly billing rate, the 'prevailing market rate' or the rate 'prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation' applies (Blum v Stenson, 465 U.S. 886, 896, 104 S. Ct. 1541, 79 L. Ed. 2d 891 [1984]); Farbotko v Clinton County, 433 F 3d 204 [2d Cir 2005]).

While it is well established that "[t]he focus on the excess award determination is not necessarily on the results achieved but on the issues presented, i.e., whether they are novel and/or unique and necessitate extraordinary efforts on the attorney's behalf" (Maxwell, 495 N.Y.S.2d 259 at 260), there is scarcely any case law on the determination of an appropriate attorney fee award in this specialized field of no-fault law.

In Liebman v New Jersey Mfrs. Ins Co., 123 Misc 2d 697 (Civ. Ct. Bronx Cty. 1984), the court granted an excess fee award based upon the court granting an hourly rate that was found within the regulations while allowing the jury to determine the number of hours. At the time, the court held that the attorney's compensation should be $75 per hour for "out of court time" and $150 per hour for "in court time" (Liebman, 123 Misc 2d 697). Prior to the repealing of the original Regulation 68, which implemented New York's No-Fault law, in 2001, the provision pertaining to an attorney fee, formerly 11 NYCRR 65.17(b)(6)(iv), dictated that "preparatory services relating to the arbitration forum or court, the attorney shall be entitled to receive a fee of up to $70 per hour and (b) in addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court." The revised Regulation 68, effective post April 5, 2002, incredibly, did not change the hourly compensation (formerly 11 NYCRR 65-4.6 [d][i] and [ii]). Lastly, the Sixth Amendment to Regulation 68, which is not applicable to the services at issue, which revised certain aspects of attorney fees, likewise, did not change an hourly compensation rate for the practice of No-Fault law (11 NYCRR 65-4.6[c]). Thus, it appears that the hourly compensation rate was largely unchanged from 1974.

However, the statute in effect at the time services were rendered, 12 NYCRR § 65-4.6 (f) (the most recent amendment on February 4, 2015, contains virtually the same language found but under subdivision [e] of 12 NYCRR § 65-4.6), is clear and unambiguous, and the words "notwithstanding the limitations specified" and "court may award an attorney's fee in excess of the limitations," will be given their plain meaning (State of NY v Patricia II., 6 NY3d 160 [*5][2006]) and a legal fee based on the usual and customary hourly fees charged by attorneys practicing no-fault law, taking into consideration reasonably comparable skill, experience, and reputation, under a lodestar or quantum meruit standard, will be awarded if at least one of those standards is met.

Although this court in its interim order dated June 2, 2017 determined that it would award "reasonable" attorney's fees based on the lodestar standard, the court may also make an award under quantum meruit through its inherent authority to do so. (See Beacon Fed. Sav. & Loan Asso. v Marks, 97 AD2d 451 [2d Dept 1983]).

Even where the attorney rate is found to be reasonable, the court may reduce the fee if it finds the amount of time spent rendering legal services was excessive. See Metropolitan Lofts of NY, LLC v Metroeb Realty 1, LLC, 46 Misc 3d 1222(A); 2015 NY Misc. LEXIS 589; 2015 NY Slip Op 50251(U) (Supt. Ct., NY Cty. Demarest, J. 2015):

The Court has further determined, however, that a 10% discount is necessitated by the duplication apparent in some of the billing. Although the hourly billing rates are reasonable, the number of hours is found to be excessive (see NYCTL 1996-1 Trust v Stavrinos Realty Corp., 113 AD3d 602, 604-605, 978 N.Y.S.2d 320 [2d Dept 2014]; Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1008, 1010, 913 N.Y.S.2d 663 [2d Dept 2010]; Friedman v Miale, 69 AD3d 789, 791, 892 N.Y.S.2d 545 [2d Dept 2010]).

Lastly, the court noted that as the attorney's fees sought are statutory and are not a part and parcel of the principal award, the jurisdictional limit of $25,000.00 is not applicable (see NYCCA § 201; Metrotran Advert. Trust Fund v. Cado Trans., Inc., 156 Misc 2d 725, 601 N.Y.S.2d 684 [Civ. Ct. 1993]).

The Court in DeGregorio v Bender, 52 AD3d 645, 646 [2d Dept 2008], summarized the standards "(i)n fixing an award of legal fees in quantum meruit, the court should consider 'evidence of the time and skill required in that case, the complexity of the matter, the attorney's experience, ability, and reputation, the client's benefit from the services, and the fee usually charged by other attorneys for similar services.'" citing Rosenzweig v Gomez, 250 AD2d 664, 672 NYS2d 907 (1998).

The Attorney's Fee Hearing

The court held an attorney's fee hearing on September 26, 2017; September 27, 2017; September 28, 2017 and October 3, 2017 pursuant to 11 NYCRR § 65-4.6.

Testimony of Max Valerio, Esq. (Plaintiff's Witness)

The court heard testimony from Max Valerio, Esq., a subpoenaed witness, who testified on behalf of the plaintiff's counsel that he is a former partner of the law firm and has worked on "hundreds of appeals." Mr. Valerio estimated that he spent approximately 20 hours doing research and 20 hours writing the four page Brief which was submitted to the Appellate Term. Mr. Valerio had no independent recollection and no contemporaneous time records. Mr. Valerio estimated that he spent 5-10 hours preparing for the Appellate Term argument. Mr. Valerio testified that he also spent 10-20 hours preparing the motion for leave to appeal to the Appellate Division. After the motion was granted, he was involved in drafting the brief which was eventually submitted to the Appellate Division. No one else helped him in researching, writing or editing the brief. Mr. Valerio testified that he "probably" spent 80 hours working on the Appellate Brief, or a period of approximately two weeks. There was no record on appeal prepared by plaintiff's counsel inasmuch as the appeal was based on the Clerk's Return. Mr. [*6]Valerio testified that he read the opposition brief from the defendant and spent between 10-20 hours working on the Reply and 2-4 hours preparing for oral argument in the Appellate Division. Mr. Valerio's hourly rate in 2005 ranged from $300-500 per hour depending on the nature of his legal services rendered. There was an argument he made in the Appellate Division which lasted one-half hour.

The court accepts Mr. Valerio's testimony to the extent that he performed legal services regarding the appeal covering the period up to and including the argument before the Appellate Division, and that he alone worked on the briefs, and that the lowest rate utilized when billing at an hourly rate was $300 per hour, but otherwise finds his testimony generally not credible.

Testimony of David Gottlieb, Esq. (Plaintiff's Witness)

The court heard testimony from David Gottlieb, Esq., who worked for plaintiff's counsel in 2010 and has perfected hundreds of appeals in the Appellate Term, and the Appellate Division, First and Second Departments, as well as two appeals in the New York State Court of Appeals. Mr. Gottlieb was on Brooklyn Law School's Law Review and was admitted in 2005. Mr. Gottlieb has conducted approximately one-hundred no-fault bench trials. Mr. Gottlieb prevailed in his law firm's competition as to who would present the oral argument in the Court of Appeals. The draft of the Court of Appeals brief was circulated throughout the law firm for feedback from other members of the firm. Mr. Gottlieb testified that he spent approximately 6 hours reviewing the record, and eight hours reviewing and researching citations within the defendant's brief. The first draft of the Court of Appeals brief took 10 hours, the second draft took 20 hours. The final draft took 10 hours. There were at least 43 emails involving feedback from other members of the firm. The Reply Brief (Court of Appeals) took 6 hours to get through (14 pages). Mr. Gottlieb checked all cites and quotes. After reviewing the Reply in the Court of Appeals, Mr. Gottlieb prepared a motion to allow the filing of amicus briefs. The preparation for the argument in the Court of Appeals was 28 hours. Mr. Gottlieb reviewed videos of arguments made in the Court of Appeals in preparation and spent a total of 130 hours working on the appeal to the Court of Appeals including oral argument. There were costs from the appellate printers, but no bills for these costs were admitted into evidence. Mr. Gottlieb did not keep contemporaneous time records.

The court accepts Mr. Gottlieb's testimony that he performed legal services regarding the appeal covering the period of time from the date the appellate division date through the decision in the Court of Appeals, but because there was inadequate testimony regarding hourly rate fees and no contemporaneous time records, the court otherwise finds his testimony insufficient for establishing a reasonable hourly rate or time spent providing legal services. Under cross examination, regarding certain services performed, Mr. Gottlieb testified, "from what I remember (2 hours of watching videos)" and "cannot tell for sure."

Stephan Belinfanti, Esq. (Plaintiff's Witness)

Mr. Belinfanti was admitted to the bar in 2001, and worked for Country-Wide Insurance Co. as a staff attorney in mid-2004, as well as other insurance defense firms and eventually started working for plaintiff's counsel in September 2010. Mr. Belinfanti has conducted hundreds of bench trials and six jury trials, three of which concluded with a verdict, and perfected a number of appeals. This court has had Mr. Belinfanti appear before it at numerous bench trials and recognizes his talent and competence. However, Mr. Belinfanti likewise did not keep any contemporaneous time records and the court is unwilling to accept testimony regarding estimates of "minimum" time spent in performing certain legal tasks. The court did not find Mr. [*7]Belifanti's testimony regarding attorney rates, to the extent there was such testimony, to be sufficient.

Gary Tsirelman, Esq. (Plaintiff's Witness)

Mr. Tsirelman is the principal of the plaintiff's counsel's firm and has been an attorney for 16 years. Mr. Tsirelman is well qualified in the area of no-fault law having an office of 40 employees with 16 lawyers with 95% of his cases involving no-fault. Mr. Tsirelman testified that he spent 10 hours working on the appeal in the appellate term, 6 hours researching and editing, 3 hours working up defendant's brief, and 1 hour discussing the appeal with Mr. Valerio. Regarding the appeal to the Appellate Division, Mr. Tsirelman spent 40 hours working on the appeal as follows: 20 hours editing/researching, 10 hours reading and rereading defendant's brief and 10 hours discussing procedure and strategy with Mr. Valerio. Mr. Tsirelman detailed how 10 attorneys participated in moot court in preparation for the argument in the Court of Appeals. Mr. Tsirelman spent 10 hours editing and researching the Court of Appeals Brief, 3 hours considering anticipated opposition, and 6 hours helping to get Mr. Gottlieb ready for his oral argument in the Court of Appeals.

Mr. Tsirelman testified that senior attorneys are billed at $500/hr. for RICO no-fault defenses, declaratory actions, breach of contract cases. This rate is placed in all retainers except for no-fault cases. The court finds that certain of the tasks were duplicative and excessive.

Sedmund Resciniti (Defendant's Witness)

Mr. Resciniti is an attorney with 57 years' legal experience who has a significant background in insurance law and testified on behalf of the defendant as someone with specialized knowledge in the area of no-fault law. Mr. Resciniti testified that he was employed by Allstate Insurance Company in 1960 and since 1962 maintained his own practice with a specialty in insurance law and no-fault. Although Mr. Resciniti testified regarding his interpretation of the statute as to the maximum hourly rate that can be charged by an attorney in an excess fee application, such an interpretation is completely disregarded because such province resides exclusively with the court. (See Measom v Greenwich & Perry St. Hous. Corp., 268 AD2d 156, 159 [1st Dept 2000], "(e)xpert testimony as to a legal conclusion is impermissible" citing People v Kirsh, 176 AD2d 652, 653, lv denied 79 NY2d 949.) However, the court does consider Mr. Resciniti's opinion that the hourly rate for no-fault legal services was $50 per hour between 2005 and 2015 [FN4] . Mr. Resciniti has perfected 6-7 appeals in the Court of Appeals, 35-40 appeals in the Appellate Division, and argued in approximately 20 matters in the Appellate Division 1st and 2nd Department, but has never tried a no-fault case in Civil Court and has only appeared in arbitration proceedings. Mr. Resciniti testified as to the time it would take to accomplish certain tasks by the plaintiff and that any time above the following estimates is unreasonable: Drafting Appellate Term Brief (1.5-2 hours); preparation for and oral argument in the Appellate Term (1.5 hours); drafting motion for leave to appeal to the Appellate Division (duplicative of Appellate Term Motion) (1 hour); drafting Appellate Division Brief (12 hours); drafting reply brief (4 hours); oral argument in Appellate Division (and preparation, 2 hours); drafting brief in Court of Appeals (8 hours); and oral argument in Court of Appeals (and preparation, 2 hours). According to Mr. Resciniti, the total reasonable hours for the appeal could [*8]not exceed 32.5-33 hours and any hours in excess of these hours is duplicative or excessive.

The court finds that the testimony of Mr. Resciniti comes much closer to the reasonable hours expended in prosecuting the appeals than the evidence presented by plaintiff's counsel and the estimates of defendant's witness will be treated as a concession of the reasonable minimum number of hours the amount that were required to prosecute the appeals. Where defendant presents an expert who renders an opinion regarding the reasonable hours expended, defendant concedes those hours. (Cf. Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539, 544 [Ct. of Ap. 1975], " in the absence of either party challenging the verity of the alleged facts, as is true in the instant case, there is, in effect, a concession that no question of fact exists [cf. Schifter v Commercial Travelers Mut. Acc. Assn., 183 Misc 74, affd 269 App Div 706; see, also, Ann., 36 ALR2d 881).

Legal Analysis

The court is unable to utilize the lodestar method to determine reasonable attorney's fees because Plaintiff's counsel's firm did not keep any contemporaneous billing records and did not provide the court with proof of a "reasonable hourly billing rate," by showing the "prevailing market rate" or the rate "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation" (Rahmey v Blum, 95 AD2d 294 [2d Dept 1983]). However, the court may accept, at a minimum, the 33 hours conceded by the defendant (cf. Kuehne & Nagel, Inc. v Baiden, Ibid) and the statutory rate of $70 for legal services rendered in court or $80 for legal services rendered in court. See 11 NYCRR § 65-4.6 (d)(1) & (2).

The court rejects all testimony regarding an hourly rate of plaintiff's counsel's attorneys of between $500 to $1,000 per hour because such testimony only pertained to hourly rates charged by plaintiff's firm having to do with matters other than the type of litigation or appeal ultimately argued in the Court of Appeals. The court accepts plaintiff's counsel's respective testimony regarding the experience of its attorneys which included years of practice and areas of expertise.

Unlike federal courts which strictly apply only a lodestar analysis (NY State Assn. for Retarded Children, Inc. v Carey, 711 F2d 1136 [2d Cir 1983]), state courts frequently determine reasonable attorney's fees on a quantum meruit basis in a multitude of contexts under its inherent authority. (See First Natl. Bank v Brower, 42 NY2d 471 [1977] where court refused to accept contractual provision mechanically applying a rate of 15% for attorney's fees upon default judgment and only accepted such percentage as a limitation of such "reasonable fees" up to such percentage based on a "quantum meruit" basis; See Matter of Greenfield, 127 AD3d 1189, 1192 [2d Dept 2015]), involving an estate matter, where an appellate court affirmed trial court's quantum meruit award of attorney's fees in in the absence of the law firm keeping contemporaneous time records; See Padilla v Sansivieri, 31 AD3d 64, 67 [2d Dept 2006], a matter involving a personal injury case where a disbarred attorney is claiming a fee prior to his disbarment, " there is case law expressly recognizing that the calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations" (citing Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 459, 539 NE2d 570, 541 NYS2d 742 [1989]).

As Justice Rivera determined in Nawaz v Boryczka, 34 Misc 3d 1234(A), 2012 NY Slip Op 50367(U), (Sup Ct, Kings County 2012), "quantum meruit," is defined to be "as much as he (or she) deserved." Black's Legal Dictionary (5th Ed., 1979, p. 1119). Making that [*9]determination requires an assessment of the value of the services rendered. (See Ruggiero v R.W. Gross Plumbing & Heating, 226 AD2d 984, 986 [3d Dept 1996], where appellate court reversed trial court in making quantum meruit determination on papers because, " the affidavit submitted by the [law] firm in support of its fee request lacked evidence of other significant factors generally considered when determining fee requests under quantum meruit, namely, the total time spent, the hourly rate charged, the amounts customarily charged for similar services in the same locality and the difficulty of the case").

The time spent by plaintiff's counsel in attending the attorney's fee hearing is not compensable as a "fee on a fee." (See Hempstead Gen. Hosp. v Natl. Grange Mut. Ins. Co., 179 AD2d 645 at 646 [2d Dept 1992] and Kumble v Windsor Plaza Co., 161 AD2d 259, 261 [1st Dept 1990].)

ISSUE: Is there enough evidence in the record to award plaintiff's counsel's fees under a theory of quantum meruit?

At the hearing, numerous documents were admitted into evidence but these documents alone are insufficient to make a quantum meruit attorney fee award. (See Neals v Cox, 240 AD2d 380, 380-381 [2d Dept 1997], "(a)ssuming, arguendo, that the case file was admissible in evidence, no evidence was submitted of the hours worked on the case and the respondent's hourly rate. Accordingly, the respondent failed to prove the value of her services on a quantum meruit basis [see, Glickson v Eli Lilly & Co., 234 AD2d 416; Sparks v Barry's Plumbing & Heating Corp., 230 AD2d 606; Ruggiero v Gross Plumbing & Heating, 226 AD2d 984])." Here, there is no doubt that time was spent in the preparation of the numerous documents that were placed into evidence, but the court would engage in pure speculation regarding establishing the actual time involved in preparing those documents.

Given that legal fees in no-fault cases are determined on an hourly rate or a percentage of the recover (11 NYCRR § 65-4.6 under current section [c] [$70/$80 per hour] with a maximum of $1,400 for in/out of court services or under current section [b] up to 20% of recovery not to exceed $1,360), and plaintiff's counsel's firm practices virtually all no-fault law, some explanation should have been offered as to why no time records were kept.

The court is being asked to use its own experience and expertise (Rahmey v Blum, 95 AD2d 294, 300 [2d Dept 1983]) to determine the reasonable hours, if any, above the hours conceded by the defendant and to further determine the reasonable hourly rates, if determined, above those specified in the statute (11 NYCRR § 65-4.6). The plaintiff's counsel's in its post-trial memorandum of law is asking the court to consider the case of Hempstead Gen. Hosp. v Natl. Grange Mut. Ins. Co., 179 AD2d 645 [2nd Dept 1992] where the appellate court affirmed the trial court's setting of the attorney hourly rate in a no-fault matter of $175.00 per hour in 1989 which adjusted by the Bureau of Labor Statistics interest calculator is equivalent to $354 in 2017.

This court will apply a flat hourly rate of $250 as reasonable for the legal services provided and makes an award of a legal fee only to the following extent:

TaskTime (hours)

Motion for Summary Judgment (Boiler Plate language obviously used in multiple motions with only significant changes being caption and amount sought)..1

Review of Affirmation in Opposition (mostly boiler plate language)..1

Draft Plaintiff-Appellant's AT Brief1.5-2

Review of Defendant-Respondent's AT Brief.5

Oral argument in Appellate Term (and preparation)1.5

Draft Plaintiff-Appellant's Motion for Leave to Appeal to the Appellate Division.2

Draft Plaintiff-Appellant's Brief12

Review Defendant-Respondent's Brief1

Draft Plaintiff-Appellant's Reply Brief4

Oral Argument in AD (and preparation)2

Review Defendant-Respondent-Appellant's Motion for Leave to Appeal to the Court of Appeals.2

Draft Plaintiff-Appellant-Respondent's Affirmation in Opposition.1

Review Defendant-Respondent-Appellant's Reply Affirmation..1

Review Record on Appeal.5

Review Motion to file Amicus Curiae Brief.5

Draft Brief for Court of Appeals10

Draft Plaintiff-Appellant-Respondent's Response to Amici Curiae Brief8

Oral Argument in Court of Appeals (and preparation)2

TOTAL49.30

Therefore, based upon the foregoing, plaintiff's motion for additional attorney's fees pursuant to 11 NYCRR 65-4.6 is granted and defendant is directed to make payment of $12,325.00 to plaintiff's counsel within thirty days of the court's decision or plaintiff may enter judgment.

This constitutes the decision and order of the court.

Dated: February 24, 2018

Richard J. Montelione, A.J.S.C. Footnotes

Footnote 1:The exception was plaintiff's claim dated November 17, 2004, in the amount of $139, which was denied based on "results from an independent medical exam the claimant attended on September 21, 2004." See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.,114 AD3d 36

Footnote 2:Plaintiff commenced this action in September 2005, prior to the adoption of the Sixth Amendment to 11 NYCRR 65-4.6 and as such, the amendment is not applicable and the section as cited is the text of the regulation prior to the amendment. However, it should be noted that amended section (e) has exactly the same language as found in paragraph (f).

Footnote 3:Indeed, the acceptance of a certified question by the Court of Appeals is discretionary (see 11 NYCRR § 500.27 [a]; see also 11 NYCRR § 500.22 [c][4][requiring movants to submit, inter alia, "a concise statement of the questions presented for review and why the questions presented merit review by this Court, such as that the issues are novel or of public importance present a conflict with prior decisions of this Court, or involve a conflict among the departments of the Appellate Division"]; Liriano v. Hobart Corp., 92 NY2d 232, 700 N.E.2d 303 [1998][the Court of Appeals declined to accept a certified question where "the Second Circuit's opinion does not indicate that there is an unsettled or open question of New York substantive law"]; Tunick v. Safir, 94 NY2d 709, 731 N.E.2d 597 [2000][the Court of Appeals noting that "the certification procedure can provide the requesting court with timely, authoritative answers to open questions of New York law, facilitating the orderly development and fair application of the law and preventing the need for speculation"]).

Footnote 4:The 2005 New York Administrative Code Archive, for 11 NYCRR § 65-4.6 (d)(1) & (2) reflects an hourly rate of $70/$80 depending on in-court our out of court work with a cap of $1,400.00.