What did the court decide?

The Appellate Division affirmed the denial of Smart Choice's request to renew its application for additional attorneys' fees and therefore it will not receive those additional fees.

Why was Smart Choice denied additional fees?

Smart Choice filed its fee submission late and then failed to show that the facts it later relied on for renewal were new or that there was a good reason it could not present them earlier, as required by CPLR 2221(e).

Who is affected by this decision?

Smart Choice Medical, P.C. is affected because it will not receive the requested additional attorneys' fees; the insurance company that sought to vacate the award is unaffected by any change because the decision affirmed the trial court's ruling.

Can Smart Choice appeal further?

This is an intermediate appellate decision; Smart Choice could seek leave to appeal to the Court of Appeals, but that would require permission and is not automatic.

Matter of American Tr. Ins. Co. v. Smart Choice Med., P.C.

Docket 2024-03978

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 02646
Docket: 2024-03978

Appeal from a judgment affirming denial of leave to renew a motion for additional attorneys' fees in a CPLR article 75 proceeding to vacate/confirm an arbitration award.

Summary

The Appellate Division affirmed the lower court's refusal to award additional attorneys' fees to Smart Choice Medical, P.C. after Smart Choice filed its fee submission late and then sought permission to renew based on an argument that the court's briefing schedule postdated its deadline. The court held that Smart Choice's asserted “new” factual basis was actually available earlier and that it failed to offer a reasonable justification for not presenting that information earlier. Because the renewal standard under CPLR 2221(e) was not met, the trial court did not abuse its discretion in denying renewal or awarding additional fees.

Issues Decided

Whether the Supreme Court abused its discretion in denying leave to renew Smart Choice's application for additional attorneys' fees under 11 NYCRR 65-4.10(j)(4).
Whether the facts Smart Choice offered on renewal were new and supported by a reasonable justification under CPLR 2221(e).

Court's Reasoning

A motion to renew must be based on new facts not previously offered and include a reasonable justification for why those facts were not presented earlier (CPLR 2221[e]). The Court found the information Smart Choice relied on was available before the initial denial and Smart Choice failed to justify why it did not present those facts earlier. Because the renewal requirements were not satisfied, the trial court did not abuse its discretion in denying renewal and refusing to award additional fees.

Authorities Cited

CPLR 2221(e)
Carmike Holding I, LLC v Smith180 AD3d 744
Seror v Clearview Operating Co., LLC235 AD3d 1023

Parties

Respondent: American Transit Insurance Company
Appellant: Smart Choice Medical, P.C.
Judge: Francesca E. Connolly, J.P.
Judge: Cheryl E. Chambers
Judge: Helen Voutsinas
Judge: Elena Goldberg Velazquez

Key Dates

Arbitration award: 2022-12-29
August 2023 order setting briefing schedule: 2023-08-23
Order denying fee application: 2023-11-30
Order denying renewal motion: 2024-04-22
Judgment appealed from: 2024-05-07
Appellate decision: 2026-04-29

What You Should Do Next

1
Consider petition for leave to appeal
If Smart Choice believes there is a significant legal issue warranting review, it may seek permission to appeal to the Court of Appeals; consult appellate counsel about timetables and merits.
2
Review calendaring and office procedures
Smart Choice should audit case management and filing practices to prevent missed deadlines and prepare documentation showing diligence in future proceedings.
3
Evaluate settlement or alternative relief
Given denial of additional fees, Smart Choice may negotiate with the opposing party regarding remaining fee disputes or other practical resolutions instead of further costly litigation.

Frequently Asked Questions

What did the court decide?: The Appellate Division affirmed the denial of Smart Choice's request to renew its application for additional attorneys' fees and therefore it will not receive those additional fees.
Why was Smart Choice denied additional fees?: Smart Choice filed its fee submission late and then failed to show that the facts it later relied on for renewal were new or that there was a good reason it could not present them earlier, as required by CPLR 2221(e).
Who is affected by this decision?: Smart Choice Medical, P.C. is affected because it will not receive the requested additional attorneys' fees; the insurance company that sought to vacate the award is unaffected by any change because the decision affirmed the trial court's ruling.
Can Smart Choice appeal further?: This is an intermediate appellate decision; Smart Choice could seek leave to appeal to the Court of Appeals, but that would require permission and is not automatic.

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 Smart Choice Med., P.C. - 2026 NY Slip Op 02646

Matter of American Tr. Ins. Co. v Smart Choice Med., P.C.

2026 NY Slip Op 02646

April 29, 2026

Appellate Division, Second Department

In the Matter of American Transit Insurance Company, respondent,

Smart Choice Medical, P.C., etc., appellant.

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

Decided on April 29, 2026

2024-03978, (Index No. 506670/23)

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 December 29, 2022, in which Smart Choice Medical, P.C., as assignee of Kingsley Parker, cross-petitioned, inter alia, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of reasonable attorneys' fees, Smart Choice Medical, P.C., appeals from a judgment of the Supreme Court, Kings County (Francois A. Rivera, J.), dated May 7, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated April 22, 2024, as denied that branch of the motion of Smart Choice Medical, P.C., which was for leave to renew its application for an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4), which had been denied in an order of the same court dated November 30, 2023, failed to award Smart Choice Medical, P.C., additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4).

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

American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated December 29, 2022, confirming an arbitration award entered in favor of Smart Choice Medical, P.C. (hereinafter Smart Choice). Smart Choice cross-petitioned, inter alia, to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys' fees. In an order dated August 23, 2023 (hereinafter the August 2023 order), the Supreme Court, among other things, upon its determination that Smart Choice was entitled to an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4), set forth a briefing schedule for Smart Choice to submit an affirmation on the issue of the amount of attorneys' fees to be awarded (hereinafter the affirmation of attorneys' fees) and for the petitioner to submit opposition thereto.

Thereafter, Smart Choice filed the affirmation of attorneys' fees. The petitioner opposed Smart Choice's application for an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4), inter alia, on the ground that the affirmation of attorneys' fees was not timely filed in accordance with the court-ordered briefing schedule. In reply, Smart Choice admitted that the affirmation of attorneys' fees was "tardy," and attributed the tardiness to law office error in the use of case management tracking software, but asked the Supreme Court to excuse the tardiness on
the ground that the petitioner was not prejudiced. In an order dated November 30, 2023, the court denied Smart Choice's application for an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4) on the ground that Smart Choice failed to comply with the court's briefing schedule and, thus, filed the affirmation of attorneys' fees late.

In December 2023, Smart Choice moved, among other things, for leave to renew its application for an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4). In support of renewal, Smart Choice argued for the first time that it could not comply with the Supreme Court's briefing schedule because Smart Choice's deadline for submitting the affirmation of attorneys' fees had already passed by the time the August 2023 order setting forth the briefing schedule was signed and uploaded to the court's electronic case filing system. The petitioner opposed Smart Choice's motion, contending that Smart Choice had not offered new information that was unavailable when the court made its initial determination to deny Smart Choice's application and submitted a copy of an email from Smart Choice to the court demonstrating that Smart Choice was aware of the deadline for submitting the affirmation of attorneys' fees in time to comply. In an order dated April 22, 2024, the court, inter alia, denied that branch of Smart Choice's motion. Thereafter, in a judgment dated May 7, 2024, the court, among other things, failed to award Smart Choice additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4). Smart Choice appeals from the judgment.

"A motion for leave to renew is addressed to the sound discretion of the court" (
Carmike Holding I, LLC v Smith
, 180 AD3d 744, 747 [internal quotation marks omitted]). Pursuant to CPLR 2221(e), a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (
see
CPLR 2221[e][2]) and shall contain reasonable justification for the failure to present such facts on the prior motion (
see
CPLR 2221[e][3]). "The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion" (
Carmike Holding I, LLC v Smith
, 180 AD3d at 747 [internal quotation marks omitted];
see

Seror v Clearview Operating Co., LLC
, 235 AD3d 1023, 1025). "However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented" (
Cioffi v S.M. Foods, Inc.
, 129 AD3d 888, 891 [internal quotation marks omitted];
see

Carmike Holding I, LLC v Smith
, 180 AD3d at 747). Reasonable justification does not exist where "the 'new evidence' consists of documents which the [moving party] knew existed, and were in fact in his own possession at the time the initial motion was made" (
Rowe v NYCPD
, 85 AD3d 1001, 1003;
see

Cioffi v S.M. Foods, Inc.
, 129 AD3d at 891).

Here, the purported new information that Smart Choice relied upon was available to it prior to the date it filed its motion, and it failed to set forth a reasonable justification for its failure to submit this information in the first instance (
see

Seror v Clearview Operating Co., LLC
, 235 AD3d at 1025;
Carmike Holding I, LLC v Smith
, 180 AD3d at 747;
Deutsche Bank Trust Co. v Ghaness
, 100 AD3d 585, 586;
Jovanovic v Jovanovic
, 96 AD3d 1019, 1020;
Rowe v NYCPD
, 85 AD3d at 1003). Accordingly, the Supreme Court properly denied that branch of Smart Choice's motion which was for leave to renew its application for an award of additional attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4).

Smart Choice's remaining contention is without merit.

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

ENTER:

Darrell M. Joseph