Appellate Division: Second Judicial Department

M56633

S/mv

ROBERT A. SPOLZINO, J.P.

GLORIA GOLDSTEIN

STEVEN W. FISHER

WILLIAM E. McCARTHY, JJ.

2006-02733 Transaero, Inc., appellant, v Biri Associates Corp., et al., respondents. (Index No. 11721/05)

DECISION & ORDER ON MOTION

Appeal by the plaintiff from an order of the Supreme Court, Nassau County, dated March 2, 2006, which was determined by decision and order of this court dated April 17, 2007. The decision and order of this court directed counsel for the parties to the appeal 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, including appellate counsel fees, against the appellant and/or its 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 thereto, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon him, Ralph A. Hummel, counsel for the appellant, shall pay a sanction in the sum of $500 to the Lawyers' Fund for Client Protection (see 22 NYCRR 130-1.1[b]; 130-1.3); and it is further,

ORDERED that the appellant, Transaero, Inc., is sanctioned in the sum of $500 and within 20 days after service of a copy of this decision and order on motion upon its counsel the appellant, Transaero, Inc., shall deposit the sum of $500 with the Clerk of this court for transmittal to the Commissioner of Taxation and Finance (see 22 NYCRR 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 above sanctions, counsel for the appellant shall file proof of such payment with the Clerk of this court.

In the decision and order determining the appeal we stated that "[t]he plaintiff's tortured attempt to argue that it had no reason, until 2005, to suspect any impropriety' on the part of the defendants, and that it relied on the integrity of its longtime attorney, Robert Costello,' flies in the face of verified allegations made by Youngwall in the 2003 litigation." Accordingly, under the unusual circumstances presented, the Supreme Court providently exercised its discretion in determining that this action was frivolous and that sanctions were warranted pursuant to 22 NYCRR 130-1.1(c). Moreover, for the same reasons, we find that this appeal is frivolous within the meaning of 22 NYCRR 130-1.1. In their papers in response to the order to show cause the appellant and his counsel fail to provide any basis for this court to conclude that their actions in proceeding with the appeal were anything but frivolous. Accordingly, for the reasons set forth in the decision and order dated April 17, 2007 (see Transaero, Inc. v Biri Associates Corp ., 39 AD3d 738), and upon the papers filed in response to the order to show cause, sanctions in the amount set forth above are appropriate.

SPOLZINO, J.P., GOLDSTEIN, FISHER and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court