Appellate Division: Second Judicial Department

M101159

S/sl

JOSEPH COVELLO, J.P.

HOWARD MILLER

THOMAS A. DICKERSON

ARIEL E. BELEN, JJ.

2008-09814 Certain Interested Underwriters at Lloyd's of London, appellant, v Z & J Construction Corp., et al., respondents. (Index No. 35745/06)

DECISION & ORDER ON MOTION

The plaintiff, Certain Interested Underwriters at Lloyd's of London, having appealed to this Court from an order and judgment (one paper) of the Supreme Court, Kings County, dated September 9, 2008, and having perfected the appeal on June 16, 2009, the respondent Congregation Chessed L'Avraham V'Kohel Ohel Moshe Society having filed a brief on July 15, 2009, and the appellant having filed a reply brief on August 13, 2009, the matter was placed on this Court's calendar for February 1, 2010. By letter dated January 28, 2010, counsel for the appellant advised this Court that the underlying matter had previously settled and releases were executed in December 2009. By decision and order on application dated February 24, 2010, the appeal was deemed withdrawn upon the parties' stipulation. By order to show cause dated February 24, 2010, 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 it, Stalker Vogrin Bracken & Frimet, LLP, counsel for the appellant, shall pay a sanction in the sum of $500 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 within 20 days after service of a copy of this decision and order on motion upon it, the Law Office of James J. Toomey, counsel for the respondent Congregation Chessed L'Avraham V'Kohel Ohel Moshe Society, shall pay a sanction in the sum of $500 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 respective parties to the appeal to promptly advise this Court that a settlement had been reached and that the appeal should not be calendared warrants the imposition of sanctions in the amounts indicated.

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

ENTER:

James Edward Pelzer

Clerk of the Court