Key Takeaway
Court rules hourly attorney fees only allowed for specifically enumerated NF-10 form policy issues in NY no-fault insurance cases, restricting fee recovery scope.
This article is part of our ongoing coverage coverage, with 149 published articles analyzing coverage issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Kamara Supplies v GEICO Gen. Ins. Co., 2020 NY Slip Op 50414(U)(App. Term 1st Dept. 2000)
The holding is simple. If the “policy issue” is not specifically enumerated on the form NF-10, there is no basis for an hourly attorney fee. A no-show or intoxication defense fits under box #4 “the injured person is excluded under policy conditions or exclusion”
The Court said it was not since IME and EUO now show are not explicitly set forth in form NF-10. The “rationale” for the restrictive ruling is set forth herein: “Construing the regulation strictly, as we must since it is in derogation of the common law rule that parties to a controversy pay their own counsel fees (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 301; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 ), hourly attorneys’ fees are allowable where one of the specifically enumerated policy issues is involved, not whether one party designates a particular defense as a policy issue.”
I think a few points need to be raised. This Court over the last two years has just been getting the issues wrong. The reason is simply the lack of no-fault appeals this Court sees. This has caused a systemic distortion of the contours of these cases. And, as this case shows, the wrong decisions swing both ways.
First, to narrowly construe box #5 as “policy conditions” is wrong. No-fault law is narrowly construed against the carrier because the purpose is to afford coverage in a swift and generous fashion. Do I agree with this policy goal? Probably not. But, my beliefs are irrelevant. This is the public policy goal. That said, all challenged inferences go to the injured person and their assignor. Assuming this is a close case, the tie goes to the runner or here, the provider.
Second, the fact that we are fighting over a $70 per hour attorney fee is plainly asinine. Have we as attorneys devalued ourselves to the point that we are satisfied working for $70 an hour or $80- an hour? Moreover, if a provider had 10 cases on the calendar that day, the provider ethically would have to split his or her fee. Moreover, the paperwork is done in mass so it is hard to justify more than a few hours of time spend on doing paper work.
While I always appreciate the nuances in the law – and make no mistake – I would have pushed for hourly attorneys fees and appealed this decision if I was the Plaintiff. But on a larger scale front, this decision tells us what is wrong with the current system.
For instance, why should attorneys representing hospitals and surgeons make more money ($1000-$1360) per file than the bottom feeder attorney representing chiropractor clinics who is fighting a $40 fee schedule reduction two treatments denied on medical necessity grounds? There is zero public policy ground for what the system has become.
I understand at one point, you could make the argument that a 20% attorney fee was fair because you could encourage the provider to put all of his or her post IME or no show billings into one case and the attorney fee would be somewhat fair? But in the modern practice, we encourage surgery bills and disincentive other practitioner’s billings? While I disagree that any of this is “constitutional” or rises to a pernicious level that would warrant wholesale judicial action, I am beginning to wonder what policy goal is addressed by this regulation?
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Insurance Coverage Issues in New York
Coverage disputes determine whether an insurance policy provides benefits for a particular claim. In the no-fault context, coverage questions involve policy inception, named insured status, vehicle registration requirements, priority of coverage among multiple insurers, and the applicability of exclusions. These articles examine how New York courts resolve coverage disputes, the burden of proof on coverage defenses, and the interplay between regulatory requirements and policy language.
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Frequently Asked Questions
What are common coverage defenses in no-fault insurance?
Common coverage defenses include policy voidance due to material misrepresentation on the insurance application, lapse in coverage, the vehicle not being covered under the policy, staged accident allegations, and the applicability of policy exclusions. Coverage issues are often treated as conditions precedent, meaning the insurer bears the burden of proving the defense. Unlike medical necessity denials, coverage defenses go to whether any benefits are owed at all.
What happens if there's no valid insurance policy at the time of the accident?
If there is no valid no-fault policy covering the vehicle, the injured person can file a claim with MVAIC (Motor Vehicle Accident Indemnification Corporation), which serves as a safety net for people injured in accidents involving uninsured vehicles. MVAIC provides the same basic economic loss benefits as a standard no-fault policy, but the application process has strict requirements and deadlines.
What is policy voidance in no-fault insurance?
Policy voidance occurs when an insurer declares that the insurance policy is void ab initio (from the beginning) due to material misrepresentation on the application — such as listing a false garaging address or failing to disclose drivers. Under Insurance Law §3105, the misrepresentation must be material to the risk assumed by the insurer. If the policy is voided, the insurer has no obligation to pay any claims, though the burden of proving the misrepresentation falls on the insurer.
How does priority of coverage work in New York no-fault?
Under 11 NYCRR §65-3.12, no-fault benefits are paid by the insurer of the vehicle the injured person occupied. For pedestrians and non-occupants, the claim is made against the insurer of the vehicle that struck them. If multiple vehicles are involved, regulations establish a hierarchy of coverage. If no coverage is available, the injured person can apply to MVAIC. These priority rules determine which insurer bears financial responsibility and are frequently litigated.
What is SUM coverage in New York?
Supplementary Uninsured/Underinsured Motorist (SUM) coverage, governed by 11 NYCRR §60-2, provides additional protection when the at-fault driver has no insurance or insufficient coverage. SUM allows you to recover damages beyond basic no-fault benefits, up to your policy's SUM limits, when the at-fault driver's liability coverage is inadequate. SUM arbitration is mandatory and governed by the policy terms, and claims must be made within the applicable statute of limitations.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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