Opinion 96 - 5

FEES -- Court Fees (exemption from when counsel to Motor Vehicle Accident Indemnification Corporation represents appellant)

CPLR, §8022; INSURANCE LAW, §5225: Where the counsel to the Motor Vehicle Accident Indemnification Corporation (MVAIC) represents an appellant on behalf of MVAIC, the exemption from fees granted by section 5225 of the Insurance Law is applicable to the fees imposed by section 8022 (b) of the CPLR.

This is in reply to your correspondence requesting an opinion on the applicability of the fee provision of CPLR, §8022(b), to an appeal involving the Motor Vehicle Accident Indemnification Corporation (MVAIC).

You state that under section 5225 of the Insurance Law, MVAIC is exempt from all fees imposed by the State. However, you have been asked whether this exemption applies in the situation in which the counsel for MVAIC represents the appellant on behalf of MVAIC but the corporation itself is not named as a party or appellant. You ask whether in these circumstances the appellant is exempt from the filing fee.

Generally, governmental entities are not exempt from court filing fees unless a statute expressly so provides (see 1988 Opns St Comp No. 88-38, p 75; 1983 Opns St Comp No. 83-20, p 22). Section 5225 of the Insurance Law provides with respect to MVAIC that:

The corporation shall be exempt from all taxes and fees now or hereafter imposed by the state, or by any county, municipality, or local authority or subdivision, except that any real property owned by the corporation shall be subject to county, municipal or local taxation to the same extent according to its value as other similar real property is taxed and that the corporation shall be subject to the fees imposed pursuant to section two hundred two of the vehicle and traffic law.

It has been our position that in the absence of any statutory or judicial definition, the word "fee" should be given its commonly understood meaning (2 Opns St Comp, 1946, p 290; see also People v Brooklyn Garden Apartments, Inc., 283 NY 373, 381 [1940]). We have construed the word to mean fees paid to public officers for services performed, such as statutory recording fees, sheriff fees, or court filing fees (8 Opns St Comp, 1952, p 702; 2 Opns St Comp, supra; see 1982 Opns St Comp No. 82-318, p 405; see also 1975 Atty Gen [Inf Opns] 44). Consequently, it is our view that the exemption granted to MVAIC by section 5225, supra , would apply generally to the fees which are required by section 8022(b) of the CPLR.

While it is clear that the exemption would apply where MVAIC is a party in an action, we believe that the exemption would also apply where MVAIC appears on behalf of a defendant. Section 5209 of the Insurance Law, which deals with investigation and defense of claims by MVAIC provides in part:

(b) The corporation may through counsel appear and defend in any action on its own behalf and on behalf of a defendant and take any other steps it deems appropriate including any appropriate method of review. All such acts shall be deemed to be the acts of the corporation and the defendant.

Since it is provided that the act of MVAIC appearing on behalf of a defendant is to be deemed an act of the corporation, it is our view that an appearance by counsel on behalf of a defendant constitutes an appearance by the corporation and places MVAIC in a position of being a defendant (Monje v Figuerola, 39 Misc 2d 277, 240 NYS2d 367 affd sub nom Monje v MVAIC, 42 Misc 2d 817, 248 NYS 832 [1963]).

Therefore, it is our opinion that for the purposes of section 5225, supra , where the counsel to MVAIC represents an appellant on behalf of MVAIC, MVAIC is to be treated as a party in the action and the exemption from fees granted by section 5225 of the Insurance Law is applicable to the fees imposed by section 8022 (b) of the CPLR.

February 14, 1996
Martin H. Brownstein, Clerk of the Court
Supreme Court of the State of New York