Opinion
(1224) CA 01-00364.
November 9, 2001.
(Appeal from Order of Supreme Court, Erie County, Glownia, J. — Counsel Fees.)
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE AND GORSKI, JJ.
Order 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 awarding plaintiffs $30,000 in attorneys' fees without conducting a hearing. In a prior order the court had awarded plaintiffs sanctions against defendant First UNUM Life Insurance Company (First UNUM) in the form of "attorney[s'] fees expended in litigating all discovery motions in this action", and in the order before us on this appeal the court set the amount at $30,000. A hearing is required to afford First UNUM an opportunity to contest the amount of the fees sought by plaintiff and to ensure that the fees are "fixed upon a proper showing of the value of work necessitated and amount of time actually expended" by plaintiffs in litigating the relevant discovery motions ( Fontanella v. Fontanella, 167 A.D.2d 185). We therefore modify the order by vacating the amount of attorneys' fees awarded and remit the matter to Supreme Court for a hearing to determine the proper amount.