CIP Physical Therapy, P.C., et. al. v. Lawsky, et. al., Index #: 3118/15 (Sup. Ct. Kings Co. 2017)
I cannot say how I came across this decision. I am slightly late in publishing this, but I have been slightly tardy in the updates. This is another lawsuit brought against the Department of Financial Services regarding the attorney fee regulation. The jeremiad presented here involves the 20% number, the lack of minimum fee and the arbitrary maximum fee.
My opinion is that an arbitration only system may lend itself to a true hourly attorney fee. Similarly, cases where special circumstances exist (current law) can also lend itself to a true hourly attorney fee. The problem as I see it as that a party that places their dispute in the counties of Richmond, Bronx, or Manhattan – given the administrative backlog and lest I say hatred toward no-fault cases – would easily achieve a $10,000 attorney fee per case given a true hourly attorney fee. The regulations are looking to avoid this reality.
One only has to look at Florida no-fault practice (either pre or post multiplier) to see the destruction that a true hourly attorney fee in a litigious no-fault state can bring. Compare that to New Jersey where in the arbitral atmosphere, the hourly attorney fee amounts are limited to about $1500 on the upper end and $500 on the lower end.
My last observation and I have said this before is that challenging DFS’ regulations in the post LMK era is an exercise in futility. It is suicidal. Sometimes cases need to be brought to show the powers at be how ridiculous certain regulations and rules of law are. I did this with the fee schedule preclusion rule and the 3 day late rocket docket preclusion matter. A point was proven and regulatory actions have been or will be taken. However, to turn around and to (again) challenge DFS’ regulations as unconstitutional and to expect different result than the last few times, well, is not going to win the day.
