Appellate Division: Second Judicial Department

M97501

S/sl

MARK C. DILLON, J.P.

HOWARD MILLER

RANDALL T. ENG

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

2009-04133 Louis Hodge, respondent, v Carmen M. Hinostroza, appellant. (Index No. 6240/07)

DECISION & ORDER ON MOTION

The defendant, Carmen M. Hinostroza, having appealed to this Court from an order of the Supreme Court, Queens County, entered March 25, 2009, and having perfected the appeal on May 4, 2009, and the respondent having filed no brief, the matter was placed on this Court's calendar for November 4, 2009. By letter dated October 27, 2009, counsel for the appellant advised this Court that the case had previously settled and requested to withdraw the appeal. The stipulation of discontinuance annexed to the letter is dated May 26, 2009. By order to show cause dated December 9, 2009, 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 court's own motion 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, Baker, McEvoy, Morrissey & Moskovits, P.C., counsel for the appellant, shall pay a sanction in the sum of $1500 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]).

The stipulation of discontinuance of the above-entitled action was dated May 26, 2009. In September 2009, in light of the fact that no respondent's brief had been filed, Court personnel contacted the appellant's attorney to determine whether the case had been settled. An associate at the appellant's attorney's office advised that the case had not settled. Prior to the appeal being calendared, a second call was placed to the same associate and elicited the same response. Under the circumstances, the failure of counsel for the appellant to advise this court that the action had been settled warrants imposition of sanctions in the amount indicated.

DILLON, J.P., MILLER, ENG, HALL and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court