What did the court decide?

The Appellate Division affirmed the lower court's confirmation of the arbitration award and its refusal to grant Bay Ridge additional attorney fees because Bay Ridge did not previously seek those fees with supporting time records.

Who is affected by this decision?

Bay Ridge Surgi-Center, LLC (the prevailed party at arbitration) and American Transit Insurance Company (the petitioner seeking vacatur) are directly affected; the decision denies Bay Ridge further attorney-fee recovery.

Why was Bay Ridge denied the additional attorney fees?

Because Bay Ridge raised the fee claim for the first time on reargument and failed to submit the contemporaneous time records and a timely application required to establish reasonable attorney fees under the regulation.

Can Bay Ridge still get attorney fees?

Not from this ruling; the court declined to award fees here because the fee request was not timely and lacked required documentation. Bay Ridge would need to show a proper, timely application with contemporaneous time records to obtain fees in a different proceeding or posture.

Can this decision be appealed further?

Potentially, Bay Ridge could seek leave to appeal to the New York Court of Appeals, but the Appellate Division affirmed and awarded costs, so further review would require permission and is discretionary.

Matter of American Tr. Ins. Co. v. Bay Ridge Surgi-Ctr., LLC

Docket 2024-03976

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed

Filed: Apr 29, 2026 · 2 days ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed
Citation: 2026 NY Slip Op 02644
Docket: 2024-03976

Appeal from a judgment in a CPLR article 75 proceeding seeking to vacate and to obtain attorney fees after confirmation of a master arbitration award

Summary

The Appellate Division affirmed the Supreme Court's judgment confirming a master arbitration award in favor of Bay Ridge Surgi-Center, LLC and refusing to award Bay Ridge additional attorney fees under 11 NYCRR 65-4.10(j)(4). Bay Ridge had sought relief after failing to appear for oral argument and moved to vacate that portion of the prior order and to obtain fees; the court denied the CPLR 5015(a)(1) motion and reargument request. The court held Bay Ridge could not use reargument to raise the fee claim for the first time and that Bay Ridge failed to submit the contemporaneous time records required to justify an award of additional fees.

Issues Decided

Whether the motion to vacate under CPLR 5015(a)(1) should be granted as to the court's failure to award additional attorney fees following Bay Ridge's default at oral argument.
Whether a request for additional attorney fees under 11 NYCRR 65-4.10(j)(4) may be raised for the first time on a motion for reargument.
Whether an award of additional attorney fees under 11 NYCRR 65-4.10(j)(4) is warranted where the prevailing party did not submit contemporaneous time records or a timely application.

Court's Reasoning

The court found the petition was decided on the merits despite Bay Ridge's failure to appear, so CPLR 5015(a)(1) relief was not available to relitigate the fee issue. A reargument motion cannot be used to present new arguments not previously raised. On the merits, the regulation allows the court to fix appellate fees, but an award requires proof of hours and prevailing rates through contemporaneous time records; Bay Ridge submitted no timely fee application or supporting documentation, so the court properly declined to award additional fees.

Authorities Cited

11 NYCRR 65-4.10(j)(4)
CPLR 5015(a)(1)
RMP Capital Corp. v Victory Jet, LLC139 AD3d 836
Hershfield v Davidoff233 AD3d 923

Parties

Respondent: American Transit Insurance Company
Appellant: Bay Ridge Surgi-Center, LLC
Judge: Francesca E. Connolly, J.P.
Judge: Cheryl E. Chambers
Judge: Helen Voutsinas
Judge: Elena Goldberg Velazquez, JJ.

Key Dates

Arbitration award date: 2022-06-28
Proceeding commenced: 2022-09-01
November order date: 2023-11-21
Motion/order denying vacatur date: 2024-04-17
Judgment date: 2024-04-26
Appellate decision date: 2026-04-29

What You Should Do Next

1
Consult counsel about further appeal
If Bay Ridge wishes to continue, consult appellate counsel promptly to evaluate seeking leave to appeal to the Court of Appeals and assess the likelihood of success given the record and procedural posture.
2
Prepare proper fee application if viable
If another procedural avenue exists to seek fees, assemble contemporaneous time records, an affirmation of services, and rate evidence before making a timely application as required by precedent and 11 NYCRR 65-4.10(j)(4).
3
Consider cost judgment implications
Review the judgment awarding costs to the respondent and determine whether to seek reconsideration or to pay, satisfy, or challenge the costs in accordance with court rules and timelines.

Frequently Asked Questions

What did the court decide?: The Appellate Division affirmed the lower court's confirmation of the arbitration award and its refusal to grant Bay Ridge additional attorney fees because Bay Ridge did not previously seek those fees with supporting time records.
Who is affected by this decision?: Bay Ridge Surgi-Center, LLC (the prevailed party at arbitration) and American Transit Insurance Company (the petitioner seeking vacatur) are directly affected; the decision denies Bay Ridge further attorney-fee recovery.
Why was Bay Ridge denied the additional attorney fees?: Because Bay Ridge raised the fee claim for the first time on reargument and failed to submit the contemporaneous time records and a timely application required to establish reasonable attorney fees under the regulation.
Can Bay Ridge still get attorney fees?: Not from this ruling; the court declined to award fees here because the fee request was not timely and lacked required documentation. Bay Ridge would need to show a proper, timely application with contemporaneous time records to obtain fees in a different proceeding or posture.
Can this decision be appealed further?: Potentially, Bay Ridge could seek leave to appeal to the New York Court of Appeals, but the Appellate Division affirmed and awarded costs, so further review would require permission and is discretionary.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC - 2026 NY Slip Op 02644

Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC

2026 NY Slip Op 02644

April 29, 2026

Appellate Division, Second Department

In the Matter of American Transit Insurance Company, respondent,

v

Bay Ridge Surgi-Center, LLC, etc., appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 29, 2026

2024-03976, (Index No. 527991/22)

Francesca E. Connolly, J.P.

Cheryl E. Chambers

Helen Voutsinas

Elena Goldberg Velazquez, JJ.

Roman Kravchenko, Melville, NY, for appellant.

Short & Billy, P.C., New York, NY (Seok Ho [Richard] Kang of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated June 28, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Ingrid Joseph, J.), dated April 26, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated November 21, 2023, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4), and upon so much of an order of the same court dated April 17, 2024, as denied that branch of the motion of Bay Ridge Surgi-Center, LLC, which was pursuant to CPLR 5015(a)(1) to vacate so much of the order dated November 21, 2023, issued upon the default of Bay Ridge Surgi-Center, LLC, in appearing for oral argument, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4) and, in effect, upon reargument, adhered to so much of the prior determination in the order dated November 21, 2023, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4), did not award Bay Ridge Surgi-Center, LLC, additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4).

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

In September 2022, American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated June 28, 2022, confirming an arbitration award entered in favor of Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge). Bay Ridge opposed the petition.

In an order dated November 21, 2023 (hereinafter the November 2023 order), the Supreme Court, upon Bay Ridge's failure to appear for oral argument, inter alia, denied the petition on the merits and confirmed the master arbitration award. In addition, as relevant to this appeal, the November 2023 order failed to award Bay Ridge additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4).

In December 2023, Bay Ridge moved, among other things, pursuant to CPLR 5015(a)(1) to vacate so much of the November 2023 order, issued upon Bay Ridge's default in appearing for oral argument, as failed to award Bay Ridge additional attorneys' fees pursuant to 11
NYCRR 65-4.10(j)(4) and for "leave to reargue the branch of the [November 2023 order] denying [Bay Ridge] its attorney fee, . . . and, upon reargument, vacating the order and granting [Bay Ridge] its attorney fee, pursuant to 11 NYCRR 65-4.10(j)(4)." In an order dated April 17, 2024, the Supreme Court, inter alia, denied that branch of Bay Ridge's motion which was pursuant to CPLR 5015(a)(1) to vacate so much of the November 2023 order, issued upon Bay Ridge's default in appearing for oral argument, as failed to award Bay Ridge additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4) and, in effect, upon reargument, adhered to so much of the prior determination in the November 2023 order as failed to award Bay Ridge additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4). The court noted that while Bay Ridge failed to appear at oral argument on the petition, the November 2023 order determined the petition on the merits in Bay Ridge's favor. The court further noted that the November 2023 order had not addressed the issue of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4) because Bay Ridge had not requested such relief and that to the extent that Bay Ridge was seeking such relief in the first instance, Bay Ridge had failed to include an affirmation of attorneys' fees in support of its application. Thereafter, in a judgment dated April 26, 2024, the court, among other things, did not award Bay Ridge additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4). Bay Ridge appeals.

The Supreme Court properly denied that branch of Bay Ridge's motion which was pursuant to CPLR 5015(a)(1) to vacate so much of the November 2023 order, issued upon Bay Ridge's default in appearing for oral argument, as failed to award Bay Ridge additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4), as Bay Ridge opposed the petition and the court determined the petition on the merits and not upon default (
see
CPLR 5015[a][1];
Cole-Hatchard v Eggers
, 132 AD3d 718, 719).

Further, Bay Ridge's contention that it was entitled to an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4) was raised for the first time in connection with that branch of its motion which was for reargument. A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided or to present arguments different from those originally presented (
see

FPG CH 94 Amity, LLC v Pizzarotti, LLC
, 218 AD3d 651, 653;
Flanagan v Delaney
, 194 AD3d 694, 698). In any event, on the merits, the Supreme Court did not err in declining to award Bay Ridge additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4). That regulation provides, in pertinent part, that "[t]he attorney's fee for services rendered in connection with . . . a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter" (
id.
). The court's determination of an award of attorneys' fees "must be based upon a demonstration of the hours reasonably expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community" (
RMP Capital Corp. v Victory Jet, LLC
, 139 AD3d 836, 839-840). "The attorney bears the burden of establishing the reasonable value of the services rendered through contemporaneous time records specifying the date, hours expended, and nature of the work performed" (
Hershfield v Davidoff
, 233 AD3d 923, 924 [internal quotation marks omitted]). Here, where the petitioner neither made a timely application for an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4) prior to the determination of the petition nor submitted any documentation of the additional attorneys' fees incurred, the court properly declined to award such fees (
see

Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C.
, 220 AD3d 461).

CONNOLLY, J.P., CHAMBERS, VOUTSINAS and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph