Appellate Division: Second Judicial Department

M104561

E/sl

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

JOHN M. LEVENTHAL

LEONARD B. AUSTIN, JJ.

2009-03687 Norma Vigo, plaintiff-respondent, v 501 Second Street Holding Corp., appellant, Gihon, LLC, et al., defendants-respondents, et al., defendants (and a third-party action). (Index No. 38083/06)

DECISION & ORDER ON MOTION

Motion by Gihon, LLC, and Nachum Davidovitch to strike the appellant's appendix and brief on an appeal from an order of the Supreme Court, Kings County, dated March 2, 2009, on the ground that the appellant failed to serve them with the appellant's appendix and brief, to impose a sanction upon the appellant and for an award of an attorney's fee and costs for the failure to serve the appellant's appendix and brief, and to enlarge the time to serve and file a brief. Application by Norma Vigo pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief. Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a reply brief. By order to show cause dated April 21, 2010, counsel for the parties were directed to show cause why an order should or should not be made and entered imposing such sanctions as the court may deem appropriate (see 22 NYCRR 130-1.1[c][2] and [3]) on the appellant's attorney, on the ground that statements in the opposition papers to the motion, inter alia, to strike were made to harass or maliciously injure another and asserted material factual statements that were false. The motion and applications were held in abeyance in the interim.

Upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the motion, inter alia, to strike, and the papers filed in opposition and in relation thereto, and upon the applications, it is

ORDERED that within 20 days of service upon her of a copy of this order, Rachel Nash, counsel for the appellant, is directed to pay a sanction in the sum of $500 to the Lawyers' Fund for Client Protection of the State of New York, on the ground that statements in her affirmation filed in opposition to the motion, inter alia, to strike were made to harass or maliciously injure another; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve counsel for the parties with a copy of this order; and it is further,

ORDERED that within 10 days after payment of the sanction, Rachel Nash, shall file proof of payment with the Clerk of this court; and it is further,

ORDERED that the branch of the motion which is to strike the appellant's appendix and brief on the ground that the appellant failed to serve the movants with the appellant's appendix and brief is denied on condition that on or before July 12, 2010, (1) the appellant serve Gihon, LLC, with two copies of the appellant's appendix and brief, and (2) file proof of service with the court; and it is further,

ORDERED that the branch of the motion which is to enlarge the time of Gihon, LLC to serve and file a brief and the application by Norman Vigo for the same relief are granted, the respondent's time to serve and file their briefs is enlarged until August 11, 2010, and the respondent's briefs must be served and filed on or before that date; and it is further,

ORDERED that the appellant's application to enlarge the time to serve and file a reply brief is denied as premature; and it is further,

ORDERED that the motion is otherwise denied.

RIVERA, J.P., FLORIO, LEVENTHAL and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court