Miller v. Marra Bros. Motor Co.

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 plaintiffs request for treble damages and attorney fees pursuant to the Motor Vehicle Information and Cost Savings Act (15 USC § 1989 [a]). At a precharge conference Supreme Court denied plaintiffs request for a separate jury question on his cause of action against defendant Corson for violation of 15 USC § 1981 et seq., and stated that a jury verdict against defendant on plaintiffs 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 F2d 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 F2d 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. (Appeal from Judgment of Supreme Court, Cattaraugus County, Horey, J. — Treble Damages.) Present — Denman, P. J., Pine, Balio, Lawton and Doerr, JJ.