Appellate Division: Second Judicial Department

M58610

J/sl

ROBERT A. SPOLZINO, J.P.

GABRIEL M. KRAUSMAN

DANIEL D. ANGIOLILLO

WILLIAM E. McCARTHY, JJ.

2006-07457 Guenter Becker, respondent, v NBTY, Inc., etc., appellant. (Index No. 20449-03)

DECISION & ORDER ON MOTION

The defendant having appealed to this court from an order of the Supreme Court, Suffolk County, dated June 7, 2006, and having perfected the appeal on November 8, 2006, the respondent having filed a brief on December 8, 2006, and the appellant having filed a reply brief on December 18, 2006, the matter was placed on this court's calendar for June 1, 2007. By letters dated May 21, 2007, and May 22, 2007, counsel for the appellant advised this court that the matter had proceeded to trial on January 29, 2007, resulting in a verdict in favor of the defendant, and the appeal was being withdrawn. By order to show cause dated June 14, 2007, 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.

No, on the court's own motion and the papers filed in response thereto, it is

ORDERED that within 20 days after service of a copy of this decision and order o motion upon it, Farrell Fritz, P.C., counsel for the appellant, shall pay a sanction in the sum of $500 to the Lawyers' Fund for Client Protection of the State of New York (see 22 NYCRR 130-1.1[b]; 130-1.3); and it is further,

ORDERED that the Clerk of the Supreme Court, Suffolk 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 appellant to promptly advise this court that the appeal should not be calendared warrants imposition of sanctions in the amount indicated.

SPOLZINO, J.P., KRAUSMAN, ANGIOLILLO and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court