Appellate Division: Second Judicial Department

M114429

E/sl

JOSEPH COVELLO, J.P.

ANITA R. FLORIO

RANDALL T. ENG

CHERYL E. CHAMBERS, JJ.

2009-07352 John Heegan, et al., plaintiffs-respondents, v Gladiator Realty Corp., defendant third- party plaintiff-respondent, Davis Alarms, Inc., et al., defendants third-party defendants-appellants (and other titles). (Index No. 40917/04)

DECISION & ORDER ON MOTION

The defendants/third-party defendants Davis Alarms, Inc., and D & W Central Station Fire Alarm, Co., Inc., having appealed to this Court from an order of the Supreme Court, Kings County, dated June 29, 2009, and perfected the appeal on April 13, 2010; the respondent Gladiator Realty Corp. filed a brief on July 14, 2010; the appellants filed a reply brief on August 20, 2010; and the matter was placed on this Court's calendar for December 2, 2010. By letter dated November 17, 2010, counsel for the appellants sought permission to withdraw the appeal. By letter dated November 29, 2010, counsel for the appellants advised this Court that the underlying matter had previously settled in October 2010. Attached to that letter was a stipulation discontinuing the underlying matter dated September 14, 2010. By order to show cause dated December 6, 2010, the appellants and the respondent 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 appellants and the respondent 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 order upon it, Simmons Jannace, LLP, counsel for the appellants, 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 within 20 days after service of a copy of this order upon it, Cullen & Dykman, LLP, counsel for the respondent Gladiator Realty Corp., 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, Kings 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 order 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 noted above 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., FLORIO, ENG and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court