Appellate Division: Second Judicial Department

M63717

E/sl

ROBERT A. SPOLZINO, J.P.

GABRIEL M. KRAUSMAN

GLORIA GOLDSTEIN

THOMAS A. DICKERSON, JJ.

2006-06070 Joseph Kotsay, respondent-appellant, v Skillman Realty Company, et al., defendants- respondents, Donghia Furniture/Textiles, Inc., defendant third-party plaintiff appellant-respondent; Capital Moving & Storage, third-party defendant- respondent. (Index No. 25169/02)

DECISION & ORDER ON MOTION

The defendant third-party plaintiff having appealed and the plaintiff having cross-appealed to this court from an order of the Supreme, Queens County, dated April 25, 2006, and the defendant third-party plaintiff-appellant-respondent having perfected the appeal on August 17, 2006, the respondent-appellant having filed an answering brief on December 1, 2006, the defendant third-party plaintiff-appellant-respondent having filed a reply brief on December 13, 2006, the defendant-respondent Thyssen Dover Elevator having filed a brief on December 26, 2006, the defendant-respondent Skillman Realty Company having filed a brief on December 29, 2006, the third-party defendant-respondent having filed a brief on January 3, 2007, and the respondent-appellant having filed a reply brief on February 13, 2007, the matter was placed on this court's calendar for October 15, 2007. By letter dated September 28, 2007, counsel for the defendant third-party plaintiff-appellant-respondent advised this court that the matter had been resolved and that the appeal was being withdrawn. On or about October 1, 2007, counsel for the respondent- appellant advised the court that the cross appeal was being withdrawn. By letter dated October 11, 2007, counsel for the defendant-respondent Thyssen Dover Elevator advised the court that the case had been settled. Copies of the stipulation withdrawing the appeal and cross appeal dated June 26, 2007, and the stipulation of discontinuance of the action, dated August 6, 2007, have now been provided to the court. By order to show cause dated October 30, 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, Curtis, Vasile, P.C., counsel for the defendant third-party plaintiff-appellant-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 within 20 days after service of a copy of this decision and order on motion upon it, Dinkes & Schwitzer, P.C., counsel for the respondent-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, Perez, Furey & Varvaro, counsel for the defendant-respondent Skillman Realty Company, 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, Babchik & Young, counsel for the defendant-respondent Thyssen Dover Elevator, 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, O'Connor, O'Connor, Hintz & Deveney, LLP, counsel for the third-party defendant-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 counsel for the parties to promptly advise this court that the action had been settled warrants imposition of sanctions in the amounts indicated.

SPOLZINO, J.P., KRAUSMAN, GOLDSTEIN and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court