Opinion
July 14, 1992
Appeal from the Supreme Court, Cattaraugus County, Horey, J.
Present — Denman, P.J., Pine, Balio, Lawton and Doerr, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in denying plaintiff's request for treble damages and attorney fees pursuant to the Motor Vehicle Information and Cost Savings Act (15 U.S.C. § 1989 [a]). At a precharge conference Supreme Court denied plaintiff's request for a separate jury question on his cause of action against defendant Corson for violation of 15 U.S.C. § 1981 et seq., and stated that a jury verdict against defendant on plaintiff's cause of action for fraud and deceit would constitute a finding of a violation of the Federal Act. Neither party objected to the procedure adopted by the court and, therefore, it is the law of the case. The jury returned a verdict of $5,281.18 against defendant on plaintiff's cause of action for fraud and deceit and plaintiff applied to the court for treble damages and reasonable attorney fees. Section 1989 (a) (1) and (2) of title 15 of the United States Code provides that any person who violates the Act shall be liable for "three times the amount of actual damages sustained or $1,500, whichever is the greater" and that the successful party shall be entitled to "the costs of the action together with reasonable attorney fees". Plaintiff is therefore entitled to treble the jury's damage award on that cause of action (see, Duval v Midwest Auto City, 578 F.2d 721, 726; Evans v. Paradise Motors, 721 F. Supp. 250, 251), and reasonable attorney fees, which are established in plaintiff's application to be $10,202.50 (see, e.g., Saber v. Dileo, 723 F. Supp. 1167; Lindsey v. Anderson Sons Auto Sales, 690 F. Supp. 1028; Oettinger v. Lakeview Motors, 675 F. Supp. 1488). Plaintiff is also entitled to additional attorney fees arising from this appeal (see, Haluschak v. Dodge City, 909 F.2d 254, 258). We therefore remit the matter to Supreme Court to determine the reasonable attorney fees associated with this appeal and to recompute the judgment against defendant to include treble damages and attorney fees.