Appellate Division: Second Judicial Department

M59355

E/sl

ROBERT A. SPOLZINO, J.P.

DAVID S. RITTER

ROBERT A. LIFSON

DANIEL D. ANGIOLILLO, JJ.

2006-03237 Anthony Stepke, respondent, v Boundary Fence & Railing Systems, Inc., appellant. (Index No. 16436/03)

DECISION & ORDER ON MOTION

The defendant appealed to this court from an order of the Supreme Court, Queens County, dated February 16, 2006, and perfected the appeal on November 21, 2006. The respondent filed a brief on December 21, 2006, and the appellant filed a reply brief on January 5, 2007. The matter was placed on this court's calendar for May 22, 2007. By letter dated May 11, 2007, counsel for the appellant advised this court that the matter had been resolved and that the appeal was being withdrawn. By letter dated May 21, 2007, counsel for the respondent advised this court, among other things, that the case had previously settled in the trial court in March 2007, and that a stipulation of discontinuance of the action was filed on April 3, 2007. By order to show cause dated June 14, 2007, the parties or their counsel were directed to show cause 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 the court deemed appropriate.

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

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Huenke & Rodriguez, trial counsel for the appellant, shall 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]; 130-1.3); and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Jeffrey B. Melcer, Esq., counsel for the respondent, shall 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]; 130-1.3); and it is further,

ORDERED that the Clerk of the Supreme Court, Queens 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 trial counsel for the appellant and counsel for the respondent to promptly advise this court that the appeal should not be calendared warrants imposition of sanctions in the amounts indicated.

SPOLZINO, J.P., RITTER, LIFSON and ANGIOLILLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court