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A.M. Medical Services, P.C. As Assignee of andrey Korotkov v. Allstate Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


March 15, 2011

A.M. MEDICAL SERVICES, P.C. AS ASSIGNEE OF ANDREY KOROTKOV,
APPELLANT,
v.
ALLSTATE INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 21, 2009.

A.M. Med. Servs., P.C. v Allstate Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 15, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The order granted defendant's motion, in effect, to vacate a notice of levy and sale of defendant's property.

ORDERED that the order is affirmed, without costs, and the matter is remitted to the Civil Court for the entry of a corrected judgment in accordance with the decision herein.

In this action to recover assigned first-party no-fault benefits, the Civil Court (Diccia T. Pineda-Kirwan, J.), after a non-jury trial, awarded plaintiff "the sum of $10,196 plus statutory interest and attorney's fees." Thereafter, plaintiff filed a proposed judgment which included, among other things, the sum of $4,259.42 in attorney's fees.

On October 24, 2006, defendant filed a "Rejection of Proposed Judgment." In that rejection, defendant stated, insofar as is relevant to this appeal, that the award of attorney's fees should be limited to the sum of $850. On October 30, 2006, plaintiff received two checks from defendant, one in the amount of $27,173 (representing the principal plus interest) and one in the amount of $915 (representing attorney's fees of $850 plus filing fees), which plaintiff deposited. On December 4, 2006, a judgment was entered in favor of plaintiff, which included, among other things, the sum of $4,259.42 in attorney's fees. Thereafter, plaintiff submitted the judgment to the marshal's office for collection of the balance due thereunder, and the marshal sent a notice of execution to defendant. Upon receiving the notice, defendant moved, in effect, to vacate the notice of levy and sale of its property. By order entered July 21, 2009, the Civil Court (Maureen A. Healy, J.) granted defendant's motion. This appeal by plaintiff ensued.

A review of defendant's moving papers indicates that defendant sought to challenge so much of the judgment as had awarded plaintiff attorney's fees in the sum of $4,259.42. In LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), the Court of Appeals reversed an order of the Appellate Division, Third Department (46 AD3d 1290 [2007]), which had held that attorney's fees in a no-fault action should be calculated on a per-claim, not a per-assignor, basis. Giving effect to an opinion letter of the Superintendent of Insurance (Ops General Counsel NY Ins. Dept. No. 03-10-04 [Oct. 2003]) which interpreted the Insurance Department regulation (Insurance Department Regulations [11 NYCRR] § 65-4.6) establishing the amount of statutory attorney's fees (Insurance Law § 5106 [a]) to be awarded, the Court of Appeals held that attorney's fees in no-fault actions are to be calculated based on the aggregate of all of the bills submitted by a provider with respect to each insured in any action, up to a maximum of $850. Since the regulation and the opinion letter of the Superintendent of Insurance fixing the proper method for calculating the amount to be awarded as attorney's fees pursuant to the regulation were extant at the time the judgment in the case at bar was entered; the Appellate Division ruling had not yet been handed down; the issue of the proper calculation of the attorney's fees due plaintiff had not at that time been determined by the court; and the assessment of the statutory attorney's fees pursuant to the Insurance Department regulation was, in essence, a ministerial matter, the clerk's mistake in entering a judgment which included attorney's fees in the sum of $4,259.42 was properly subject to correction by the Civil Court pursuant to CPLR 5019 (see Kiker v Nassau County, 85 NY2d 879 [1995] cf. Bank of NY v Carlucci, 289 AD2d 349 [2001] [where attorney's fees are not statutorily fixed, an award of attorney's fees is a substantive part of a judgment not subject to correction pursuant to CPLR 5019 (a)]). Accordingly, the order is affirmed and the matter is remitted to the Civil Court for the entry of a corrected judgment awarding plaintiff attorney's fees in the sum of $850.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: March 15, 2011

20110315

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