Appellate Division: Second Judicial Department

M45493

S/sl

GLORIA GOLDSTEIN, J.P.

DANIEL F. LUCIANO

REINALDO E. RIVERA

STEVEN W. FISHER, JJ.

2004-05178 Bret Bashant, et al., plaintiffs, v Mid-Westchester Realty Associates, LLC, et al., defendants third-party plaintiffs-respondents; H.E. Palmer Service Corp., third-party defendant-appellant. (Index No. 2280/00)

ORDER TO SHOW CAUSE

The plaintiffs having appealed and the third-party defendant having cross-appealed to this court from an order of the Supreme Court, Dutchess County, dated May 12, 2004, and the plaintiffs having perfected the appeal on December 14, 2004, and the third-party defendant having perfected its cross appeal on January 18, 2005, the defendants third-party plaintiffs having filed their brief on March 9, 2005, and the third-party defendant having filed a reply brief on March 24, 2005, the matter was placed on this court's calendar for February 23, 2006. At oral argument of the appeal the plaintiffs informed the court that the main action had been settled in November 2005 and the only remaining issue to be resolved on the appeal was the third-party defendant's claim relating to indemnification (see Bashant v Mid-Westchester Realty Assocs., LLC, AD3d [July 25, 2006]). The plaintiffs submitted a stipulation dated February 22, 2006, withdrawing their appeal. By decision and order on application dated April 24, 2006, the plaintiffs ' appeal was deemed withdrawn. By order to show cause dated July 27, 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 response thereto, it is

ORDERED that within 20 days after service upon them of a copy of this decision and order on motion, Kelly & Meenagh, counsel for the plaintiffs, Wechsler & Cohen, LLP, counsel for the defendants third-party plaintiffs, and Ahmuty, Demers & McManus, counsel for the third-party defendant, are each directed to pay a sanction in the sum of $250 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 for the parties to promptly advise this court that the action had been partially settled warrants imposition of sanctions in the amounts indicated.

GOLDSTEIN, J.P., LUCIANO, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court