AEE Med. Diagnostic, P.C. v Hereford Ins. Co. (2019 NY Slip Op 29102)

[*1]

Civil Court of the City of New York, New York County, April 9, 2019

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for plaintiff.

Law Offices of Rubin & Nazarian, Long Island City (Tasnim Hassanali of counsel), for defendant.

Background

Plaintiff commenced this action to recover assigned first-party no-fault benefits on behalf of Eric Daniel (assignor) in 2013. In 2018, plaintiff was awarded a judgment for the amount sued for. The action was then assigned to this court for a determination of plaintiff’s claim for attorneys’ fees.

The summons and complaint were filed on February 6, 2013.

On May 6, 2013, defendant appeared, by counsel, and filed an answer asserting 11 affirmative defenses, including that plaintiff’s assignor failed to appear for an independent medical exam (IME) and thus breached a condition precedent for coverage.

On June 25, 2013, defendant moved for summary judgment based on its defense that the assignor failed to appear for an IME. The motion was adjourned to October 4, 2013, April 1, 2014, July 25, 2014, and January 6, 2015. On February 5, 2015, defendant withdrew the motion.

There was a preliminary conference scheduled for October 4, 2013, and further conference dates on April 30, 2014, November 12, 2014, and April 22, 2015.

Plaintiff filed a notice of trial on May 14, 2015.

The action appeared on the trial calendar on May 25, 2016, June 8, 2017, July 5, 2018, September 24, 2018, November 5, 2018, and December 18, 2018. On December 18, 2018, the court (Ramirez, J.) issued a decision which stated in pertinent part:

“Plaintiff has made out a prima facie case. Defendant has failed to establish its defense of IME no show. Thus, judgment for Plaintiff for $944.12, plus statutory interest and filing fees.

“The issue of attorney fees will be severed and heard in Part MP2 on 2/20/19 at 9:30 am (Room 353).”

On February 20, 2019, the action was adjourned to April 1, 2019.

On April 1, 2019, the action was assigned to this court for a hearing to determine plaintiff’s claim for attorneys’ fees. The{**63 Misc 3d at 877} hearing commenced and concluded on that date. The matter was adjourned to April 8, 2019, for the submission of legal memoranda. On April 8, 2019, after the submission of memos by each party via email, the court reserved decision.

The Hearing

Plaintiff presented one witness at the hearing, Jennifer Raheb (JR), an attorney with the law firm representing plaintiff. Plaintiff also submitted a copy of the pleadings, the summary judgment motion papers, a printout from eCourts and the decision entering judgment.

JR testified that she has been admitted to practice law for 15 years, and has worked for Gary Tsirelman, P.C. for approximately five years. JR is familiar with this action and made all the court appearances on the case from at least May 2016 forward. JR testified credibly that each time the action appeared on the trial calendar, she spent approximately one hour preparing the file the night before. For this case, JR testified that the preparation included review of documents related to defendant’s IME no-show defense, including letters requesting an appearance for an IME and proof of mailing. JR testified that she also prepared cross-examination for the two witnesses she expected defendant to produce to establish proof of the assignor’s failure to appear and the scheduling letters.

JR did not do the opposition to the summary judgment motion, nor is there a record of opposition papers having been filed with the court. However, plaintiff did submit a copy of the opposition papers prepared by another attorney at the firm, Douglas Mace, Esq. (exhibit 7).

JR testified that in her experience motions on policy issues are much more complex than motions on medical necessity.

JR is assigned to handle the New York County no-fault cases for her firm and makes daily appearances in New York County Civil Court. JR typically arrives in court at around 9:30 a.m.

JR remembers first appearing on this case in 2015.

While JR had some independent recollection of specific appearances, much of her testimony was based on her general practice and procedures. JR testified that there were six appearances required for defendant’s summary judgment motion and eight appearances required for trial dates.

JR testified that no adjournments were granted without an application before the court on the trial dates, because of the age of the action. JR testified that she called defendant prior to{**63 Misc 3d at 878} each date and on each occasion, defendant stated they were ready to proceed.

JR appeared on May 25, 2016, before Judge Samuels and recalled that the trial was adjourned on defendant’s application.

JR appeared on June 8, 2017, and defendant made an application for an adjournment.

JR appeared on July 5, 2018, before Judge Nock, and defendant made an application to adjourn to secure a witness for the IME no-show defense. Defendant had only one witness available on that date.

JR testified that both parties knew early on that plaintiff would be seeking attorneys’ fees in this litigation, and that the case stood out in her mind for that reason.

On September 24, 2018, both parties appeared in court and conferenced the case with Judge Ramseur and her court attorney. Defendant decided at that time that it was not going to pursue the IME no-show defense and the action was adjourned to discuss a possible resolution including the issue of attorneys’ fees.

On November 5, 2018, defendant made an application for an adjournment and stated it did intend to proceed on the IME no-show defense at trial.

On December 18, 2018, the order entering judgment against defendant was issued. JR testified that plaintiff relied upon a notice to admit to establish its prima facie case. JR estimated that the trial could not have commenced before 11:00 or 11:30 a.m., because the court first went through the calendar calls.

The parties appeared on February 20, 2019, for the attorneys’ fees hearing, but the court had mis-calendered the matter and the hearing was adjourned to April 1, 2019.

On cross-examination, JR acknowledged that she maintained no contemporaneous records of the time she spent working on this case. For example, she did not record on any of the appearance dates the time she left the courthouse.

JR testified that she typically has more than one case on the morning calendar but less than 10 cases. While her office does maintain records of the specific number of cases she was handling on each of the dates in question, JR did not bring those records with her for the purpose of the hearing.{**63 Misc 3d at 879}

Discussion

It is undisputed that in this case defendant designated its IME no-show defense as a policy issue by checking off box 5 on the NF-10 denial of claim form.

11 NYCRR 65-4.6 (c) governs payment by insurers of applicants’ attorneys’ fees for services necessarily performed in the resolution of no-fault disputes and provides in pertinent [*4]part:

“For disputes subject to . . . court proceedings, where one of the issues involves a policy issue as enumerated on the prescribed denial of claim form (NYS form NF-10), subject to this section, the attorney’s fee for the arbitration or litigation of all issues shall be limited to a fee of up to $70 per hour, subject to a maximum fee of $1,400. 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.”

While defendant argues that there was no policy issue in this action, the court disagrees. “The failure to appear for IMEs requested by the insurer ‘when, and as often as, [it] may reasonably require’ (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]).

Plaintiff has the burden in establishing the amount of hours reasonably spent on legal work in this action. Plaintiff admitted it was aware that it would be seeking attorneys’ fees in this action, and the best evidence of time spent would have been time records contemporaneously maintained by the attorney doing the work.

JR’s testimony on the hours she spent was essentially an educated guess based on her routine and custom. For example, in confirming that she appeared on the dates in question, JR testified that she relied in part on her records of days absent from work, and when she saw she was not absent she determined she would have been the attorney in court on a particular date.

Less guesswork would have been involved had plaintiff provided evidence of the number of other matters she handled on each date she appeared. This evidence was readily available to plaintiff, as acknowledged by JR in her testimony, but not provided to the court, nor subpoenaed by defendant.{**63 Misc 3d at 880}

The court finds that plaintiff’s attorneys spent at least one-half hour in court on each of the trial dates on May 25, 2016, June 8, 2017, July 5, 2018, September 24, 2018, November 5, 2018, and December 18, 2018. This is reduced from the one hour per appearance requested by plaintiff, based on the failure of counsel to maintain contemporaneous time records for the appearances, and the failure of plaintiff to provide the court with evidence on the number of cases the attorney was handling in court on each of the dates in question.

As JR did not testify with certainty that she appeared on the earlier dates, and no other attorney for plaintiff offered evidence of same, no time is awarded for court appearances prior to the initial trial date.

No award is made for appearances after the trial date, as these appearances were solely on the issue of attorneys’ fees and time spent substantiating counsel fees, also known as fees on fees, and are not permitted by the statute (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2017]; Insurance Law § 5106 [a]).

The court further finds that JR spent one hour each night prior to scheduled trial dates in preparation.

Plaintiff is additionally awarded one-half hour for the preparation of opposition papers to defendant’s summary judgment motion. Again since there was no evidence on the amount of time the attorney who prepared the papers spent on the task, and the papers were never filed with the court, the time is more limited than requested by plaintiff.

Based on the foregoing, the court finds plaintiff is entitled to three hours for court appearances totaling $240 and 6.5 hours for trial preparation and the affirmation in opposition totaling $455. Plaintiff is entitled to a total of $695 for attorneys’ fees in this action.

Footnotes

Footnote *:The file was not available to the court at the time of the hearing. The procedural history is based on the case summary maintained by Civil Court as well as the documents and testimony presented at the attorneys’ fees hearing.