Appellate Division: Second Judicial Department

M38781

S/sl

ROBERT W. SCHMIDT, J.P.

THOMAS A. ADAMS

FRED T. SANTUCCI

PETER B. SKELOS, JJ.

2005-03767 Yvette Williams, respondent, v Napoleon Parker, appellant. (Index No. 32455/02)

DECISION & ORDER ON MOTION

The defendant having appealed to this court from an order of the Supreme Court, Queens County, dated April 8, 2005, and having perfected the appeal on May 23, 2005, and no brief having been filed by the respondent, the matter was placed on this court's calendar for February 14, 2006. By letter dated January 31, 2006, counsel for the appellant advised this court that the underlying action had settled and that the instant appeal was being withdrawn. Counsel for the respondent subsequently advised the court that the case had settled on August 18, 2005. By order to show cause dated March 6, 2006, the parties or their counsel were directed to show cause before this court why an order should or should not be made and entered imposing such sanctions and/or costs, if any, against the parties to the appeal or their respective counsel pursuant to 22 NYCRR 670.2(g) as this court may deem appropriate.

Now, on the court's own motion and the papers filed in opposition thereto, it is

ORDERED that within 20 days after the service upon them of a copy of this decision and order on motion, Percy Randall, Esq., counsel for the defendant, and Howard R. Birnbach, Esq., appellate counsel for the defendant, are each directed to pay a sanction in the sum of $750 to the Lawyers' Fund for Client Protection of the State of New York (see 22 NYCRR 130-1.1[b]); and it is further,

ORDERED that the Clerk of the Supreme Court, Kings County, shall enter judgment accordingly (see 22 NYCRR 130-1.2); and it is further,

ORDERED that the Clerk of this court, or his designee, shall serve a copy of this decision and order on motion upon counsel for the parties by regular mail.

Section 670.2(g) of the rules of this court provides, in relevant part, that "[i]f a cause or the underlying action or proceeding is wholly or partially settled * * * or if any cause should not be calendared * * * for some other reason, the parties or their counsel shall immediately notify the court," and "[a]ny attorney or party who, without good cause shown, fails to comply with the requirements of this subdivision shall be subject to the imposition of such costs and/or sanctions as the court may direct" (22 NYCRR 670.2[g]).

Under the circumstances the failure of counsel and appellate counsel for the defendant to promptly advise this court that the action had been settled warrants imposition of sanctions in the amount indicated.

SCHMIDT, J.P., ADAMS, SANTUCCI and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court