Appellate Division: Second Judicial Department

M64092

E/sl

ROBERT W. SCHMIDT, J.P.

STEPHEN G. CRANE

PETER B. SKELOS

ROBERT A. LIFSON, JJ.

2005-11121 Tri-State Consumer, Inc., appellant, v Mintz & Gold, LLP, respondent. (Index No. 5054/05)

DECISION & ORDER ON MOTION

Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Nassau County, dated October 26, 2005, on the ground that it has been rendered academic and to impose sanctions upon Dean Hart, the individual allegedly prosecuting the appeal in the name of the appellant, and his counsel. By decision and order on motion dated March 3, 2006, the branches of the motion which were to dismiss the appeal on the ground that it had been rendered academic and to impose costs and/or sanctions were held in abeyance, and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal. By decision and order dated November 7, 2007, the branch of the motion which was to dismiss the appeal as academic was granted and the branch of the motion which was to impose costs and/or sanctions upon Dean Hart, the individual allegedly prosecuting the appeal in the name of the appellant, and Steven Cohn, P.C., was granted to the extent that the parties and/or their counsel were directed to show cause why an order should or should not be made and entered imposing such costs and/or sanctions, if any, including appellate counsel fees, against Dean Hart, the individual allegedly prosecuting the appeal in the name of the appellant, and Steven Cohn, P.C., pursuant to 22 NYCRR 130 -1.1(c) as this Court may deem appropriate, and the branch of the motion to impose costs and/or sanctions was otherwise held in abeyance.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, upon the decision and order on motion dated March 3, 2006, upon the decision and order dated November 7, 2007, and upon the papers filed in response to the decision and order dated November 7, 2007, it is

ORDERED that the branch of the motion which is to impose costs and/or sanctions upon Dean Hart, the individual allegedly prosecuting the appeal in the name of the appellant, and Steven Cohn, P.C., is denied.

Under the circumstances of this case, the imposition of costs or sanctions, including appellate counsel fees, is not warranted.

SCHMIDT, J.P., CRANE, SKELOS and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court