Appellate Division: Second Judicial Department

M73912

S/sl

REINALDO E. RIVERA, J.P.

HOWARD MILLER

JOSEPH COVELLO

ARIEL E. BELEN, JJ.

2008-04981 Steppingstone at Montauk Condominium, respondent, v Richard B. Lawrence, appellant. (Index No. 30463-07)

DECISION & ORDER ON MOTION

Motion by the respondent on an appeal from an order of the Supreme Court, Suffolk County, dated April 18, 2008, to vacate a temporary restraining order contained in an order to show cause signed by a Justice of this Court on May 27, 2008, and to award it costs and an attorney's fee based on the conduct of the appellant's counsel in serving the order to show cause on the respondent but failing to file the order to show cause with the Clerk of the Appellate Division, Second Department.

Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is

ORDERED that on the Court's own motion, the appeal is dismissed, without costs or disbursements, as no appeal lies from an order entered upon the default of the appealing party (see Marino v Termini, 4 AD3d 342; CPLR 5511); and it is further,

ORDERED that the branch of the motion which is to vacate the temporary restraining order is denied as unnecessary in light of the dismissal of the appeal; and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Edward J. Martz, Esquire, PLLC, the attorney for the appellant, shall pay the sum of $ 4,237.50, to the attorneys for the respondent, Tarbet, Lester & Schoen, PLLC, representing the respondent's costs and an attorney's fee in responding to the appellant's order to show cause and in making the instant motion to vacate the temporary restraining order (see 22 NYCRR 130.1-1[b]).

The attorney for the appellant served the order to show cause for a stay on the attorneys for the respondent while failing to file the order to show cause with the Clerk of the Appellate Division, Second Department, causing the respondent to file opposition papers to a motion which was not pending before the Court. Further, the appellant's attorney obtained a temporary restraining order which remained in force pending determination of the motion for the stay thereby causing the respondent to make this separate motion to vacate the temporary restraining order. Under the circumstances we conclude that this conduct is frivolous warranting the imposition of costs and an attorney's fee in the amount indicated (see Gerstein v I. Travel, Inc., 169 AD2d 492).

RIVERA, J.P., MILLER, COVELLO and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court