March 23, 2015

EMA Acupuncture P.C. v Allstate Ins. Co. (2015 NY Slip Op 50348(U))

Headnote

The court considered the plaintiff's appeal from an order of the Civil Court of the City of New York, which granted the defendant's motion to consolidate four related actions and to limit any potential recovery of attorneys' fees in the consolidated action to $850. The main issues decided were whether the $850 limit on attorneys' fees, as provided by Insurance Department Regulations, was properly applied to the claims at issue in the consolidated action and whether the plaintiff's appeal from the portion of the order granting consolidation should be dismissed since the plaintiff had agreed to consolidation. The holding of the court was that the $850 limit on attorneys' fees was properly applied to the claims at issue, and that the plaintiff's appeal from the portion of the order granting consolidation must be dismissed.

Reported in New York Official Reports at EMA Acupuncture P.C. v Allstate Ins. Co. (2015 NY Slip Op 50348(U))

EMA Acupuncture P.C. v Allstate Ins. Co. (2015 NY Slip Op 50348(U)) [*1]

EMA Acupuncture P.C. v Allstate Ins. Co.

2015 NY Slip Op 50348(U) [47 Misc 3d 126(A)]

Decided on March 23, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570852/14

EMA Acupuncture P.C. a/a/o Nicole Flynn, Plaintiff-Appellant, –
against
Allstate Insurance Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered December 17, 2012, which granted defendant’s motion to consolidate four related actions and to limit any potential recovery of attorneys’ fees in the consolidated action to $850.

Per Curiam.

Order (Margaret A. Chan, J.), entered December 17, 2012, insofar as appealable, affirmed, with $10 costs.

We sustain so much of the order under review as limited the amount of any recovery of attorneys’ fees to the sum of $850, the maximum allowable pursuant to Insurance Department Regulations [11 NYCRR] § 65-4.6(e). Since this provision provides that attorneys’ fees in a no-fault action are to be calculated based on the “aggregate of all bills for each insured” disputed in any action, up to a maximum of $850 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]), the $850 limit was properly applied to the claims at issue in this consolidated action, all of which involve the same parties and assignor, and arise from the same accident.

Plaintiff’s appeal from that portion of the order granting consolidation must be dismissed, inasmuch as plaintiff expressly “agree[d] to consolidation.” No appeal lies from an order entered on consent of the appealing party (see CPLR 5511; Shteierman v Shteierman, 29 AD3d 810 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 23, 2015