Appellate Division: Second Judicial Department

M69923

S/sl

WILLIAM F. MASTRO, J.P.

MARK C. DILLON

JOSEPH COVELLO

RUTH C. BALKIN, JJ.

2006-03770 7 Highland Management Corp., appellant, v Mary McCray, respondent. (Index No. SP-2275/04)

DECISION & ORDER ON MOTION

The plaintiff having appealed, by permission, to this Court from an order of the Appellate Term of the Supreme Court, Ninth and Tenth Judicial Districts, dated September 23, 2005, and the appellant having perfected the appeal on November 15, 2006, the respondent having filed a brief on December 15, 2006, and amicus curiae briefs having been filed on February 5, 2007, and March 15, 2007, respectively, the matter was placed on this Court's calendar for November 30, 2007. By stipulation dated November 30, 2007, the parties withdrew the appeal. By letter dated February 7, 2008, the attorney for the appellant advised the court that the appeal was withdrawn based on a decision issued by the Court of Appeals, on July 2, 2007, in an action entitled Rosario v Diagonal Realty, LLC ( 8 NY 3d 755). By order to show cause dated March 3, 2008, 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.

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 him, Andrew M. Romano, 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 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 appellant to promptly advise this court that the appeal should not be calendared warrants imposition of sanctions in the amounts indicated.

MASTRO, J.P., DILLON, COVELLO and BALKIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court