Appellate Division: Second Judicial Department

M54478

S/sl

ROBERT W. SCHMIDT, J.P.

FRED T. SANTUCCI

GABRIEL M. KRAUSMAN

RUTH C. BALKIN, JJ.

2005-08039, 2005-08985 East Coast Athletic Club, Inc., et al., appellants, v Chicago Title Insurance Company, respondent. (Index No. 4083/05)

DECISION & ORDER ON MOTION

Appeals by the plaintiffs from two orders of the Supreme Court, Nassau County, dated June 21, 2005, and August 23, 2005, which were determined by decision and order of this court dated April 3, 2007. The decision and order of this court directed counsel for the parties 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 appellants and their counsel pursuant to 22 NYCRR 130-1.1(c) as this court may deem appropriate.

Upon the papers filed in response to the order to show cause, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon him, Paul A. Batista, counsel for the appellants, shall pay a sanction in the sum of $1500 to the Lawyers' Fund for Client Protection (see 22 NYCRR 130-1.1[b]; 130-1.3); and it is further,

ORDERED that the Clerk of the Supreme Court, Nassau 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; and it is further,

ORDERED that within 10 days after payment of the sanction, counsel for the appellants shall file proof of such payment with the Clerk of this court.

In the decision and order determining the appeals we stated that "the appellants' conduct in commencing this action and pursuing the instant appeal is patently frivolous. In addition to the fact that the appellants have alleged the breach of a contract to which they are not a party, the instant action is essentially a collateral attack on the order dated September 17, 2003 - an order which has already been affirmed by this court (see McMurray v McMurray, 157 AD2d 773, 774)." In their papers in response to the order to show cause the appellants fail to provide any basis for this court to conclude that their actions in proceeding with the appeals were anything but frivolous. Accordingly, for the reasons set forth in the decision and order dated April 3, 2007 (see East Coast Athletic Club, Inc., v Chicago Title Insurance Company, _____ AD3d _____ [2d Dept, Apr. 3, 2007]), and upon the papers filed in response to the order to show cause, the imposition of a sanction in the amount set forth above is appropriate.

SCHMIDT, J.P., SANTUCCI, KRAUSMAN and BALKIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court