Key Takeaway
Third DCA refuses to apply NY no-fault regulation 65-4.6(e) under abuse of discretion standard in Advanced Physical Therapy v.
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Advanced Physical Therapy v. Camrac, LLC, 3D20-1175 (Fla. 3d DCA 2021)
Someone asked – what happens when a Florida Appellate Court has to interpret a New York no-fault regulation? Here is the one word answer: “Duck”.
In this mammoth of a case, the Court luckily did not have to opine on the issue of coverage, out of state fee schedules, and Florida’s fee schedules as they apply 68.6(b). This was not a typical PIP case and the largest PIP outfit in Florida passed on dealing with these matters. So, I stepped in as I did not have any conflicts. Camrac (elrac/elco) eventually folded their tent on liability and later on damages.
The issue became bonus attorney fees. The case was unwieldy and complicated, so I sought them. Camrac opposed. The Circuit Court found this case did not pierce the 65-4.6(d) fee limitations. I disagreed and, of course, appealed.
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In a land where 95 percent of cases end up with a PCA, I get a written opinion that made the top page of Florida Law Weekly. The opinion has two parts. The first involves a device called the proposal for settlement (“PFS”). That is a nuanced Fla specific issue and not relevant.
The second involved 65-4.6(e). Both parties agreed the issue was subject to a de novo review, which probably would have meant a remand. But the Court did the following:
Pursuant to the text of the applicable New York regulation, the fee cap is inapplicable only if the trial court determines the case is “of such a novel or unique nature as to require extraordinary skills or services.”
“We consider such a determination to be akin to the determination a Florida trial court must make when awarding fees to a prevailing party. Among the factors a trial court considers, particularly in determining the applicability of a multiplier, is the novelty, complexity or difficulty of the questions involved in the case... While this case may not present as the typical Florida PIP case, nothing in the record would allow us to conclude that the trial court abused its discretion by determining that the case was not of such a novel or unique nature so as to require extraordinary legal skills or services. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (observing that an abuse of discretion does not occur if reasonable persons could differ about the view adopted by the trial court).”
My objection? How can a Florida Court applying a New York regulation 1) Never cite a NY Case; and 2) Decide to adjudicate 4.6(e) under a Florida standard? Neither party advocated for this approach. Insanity or, figuratively, ducking,
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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.
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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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