Appellate Division: Second Judicial Department

M114987

E/sl

A. GAIL PRUDENTI, P.J.

DANIEL D. ANGIOLILLO

ARIEL E. BELEN

LEONARD B. AUSTIN, JJ.

2009-08650 Andrea Grippi, appellant, v Balkan Sewer & Water Main Service, et al., respondents (and third-party actions). (Index No. 28730/08)

DECISION & ORDER ON MOTION

The plaintiff, Andrea Grippi, appealed to this Court from an order of the Supreme Court, Queens County, dated December 15, 2008, and perfected the appeal on April 5, 2010, the respondent Balkan Sewer & Water Main Service filed a brief on May 6, 2010, and the matter was placed on this Court's calendar for November 16, 2010. By letter dated October 29, 2010, counsel for the respondent Balkan Sewer & Water Main Service advised this Court that the case had previously settled. The stipulation of discontinuance annexed to the letter, which included a provision withdrawing the appeal, was dated September 21, 2010. By order to show cause dated November 24, 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 pursuant to 22 NYCRR 670.2(g) upon the appellant and the respondent Balkan Sewer & Water Main Service or their counsel.

Upon the order to show cause and the papers filed in response thereto, it is

ORDERED that within 20 days of service upon it of a copy of this order, John J. Ciafone, counsel for the appellant, is directed to pay a sanction in the sum of $250 to the Lawyers' Fund for Client Protection of the State of New York; and it is further,

ORDERED that within 20 days of service upon it of a copy of this order, Smith Mazure Director Wilkins Young & Yagerman, P.C., counsel for the respondent Balkan Sewer & Water Main Service, is directed to pay a sanction in the sum of $250 to the Lawyers' Fund for Client Protection of the State of New York; 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, John J. Ciafone and Smith Mazure Director Wilkins Young & Yagerman, P.C., shall file proof of payment with the Clerk of this Court.

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]). Here, the appellant's counsel failed to notify the Court that the case had settled, and Smith Mazure Director Wilkins Young & Yagerman, P.C., notified the Court 18 days before oral argument that a stipulation of discontinuance had been executed 38 days before. Thus, under the circumstances, sanctions in the amount set forth above are warranted.

PRUDENTI, P.J., ANGIOLILLO, BELEN and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court