Appellate Division: Second Judicial Department

M63729

E/sl

REINALDO E. RIVERA, J.P.

PETER B. SKELOS

STEVEN W. FISHER

DANIEL D. ANGIOLILLO, JJ.

2006-05975, 2006-10912 Suzanne K. Mahler, plaintiff-respondent, v Town of Brookhaven, defendant, 210-302 Parillo, LLC, defendant third-party plaintiff-appellant; Incorporated Village of Port Jefferson, third-party defendant-respondent. (Index No. 4013-02)

DECISION & ORDER ON MOTION

The defendant third-party plaintiff having appealed to this court from an order of the Supreme Court, Suffolk County, dated May 11, 2006, and from a judgment of the same court entered October 30, 2006, and the appeals having been perfected on February 16, 2007, the plaintiff-respondent having filed a brief on March 21, 2007, and the third-party defendant-respondent having filed a brief on April 19, 2007, the matter was placed on this court's calendar for October 18, 2007. By telephone on September 28, 2007, and by letter dated October 1, 2007, counsel for the defendant third-party plaintiff-appellant advised this court that the matter had been resolved and that the appeals were being withdrawn. The stipulation of discontinuance of the action is dated April 26, 2007, and was filed with the Suffolk County Clerk's Office on May 14, 2007. By letters dated October 1, 2007, counsels for the plaintiff-respondent and the third-party defendant-respondent advised the court that they "ha[d] no objection to the withdrawal of the appeal[s]." 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 appeals 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, Cascone & Kluepfel, LLP, counsel for the defendant third-party plaintiff-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 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 action had been settled warrants imposition of sanctions in the amount indicated.

RIVERA, J.P., SKELOS, FISHER and ANGIOLILLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court