| Karina K. Acupuncture, P.C. As Assignee of Joanne Alexis v State Farm Mut. Auto. Ins. Co. |
| Motion No: 2012-01146 KC |
| Slip Opinion No: 2014 NY Slip Op 85555(U) |
| Decided on September 18, 2014 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
of the State of New York for the 2nd, 11th & 13th judicial Districts
MICHAEL L. PESCE, P.J.
THOMAS P. ALIOTTA
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
| Karina K. Acupuncture, P.C. as Assignee of Joanne Alexis, Appellant, v State Farm Mutual Automobile Ins. Co., Respondent |
Appellant Karina K. Acupuncture, P.C., a/a/o Joanne Alexi, appealed to this court from an order of the Civil Court of the City of New York, Kings County, dated January 3, 2012. Appellant and respondent attended a Civil Appeals Management Program (CAMP) conference on June 28, 2012, and appellant perfected the appeal on October 18, 2012. Both parties were mailed an Oral Argument Notice on May 7, 2014, advising each that the appeal was placed on the May 21, 2014 ready-day calendar, and counsel for the plaintiff-appellant appeared on May 21, 2014 and submitted a Stipulation Discontinuing Appeal After Settlement, signed both parties and dated January 4, 2013, more than 16 months earlier. By order to show cause dated June 13, 2014, 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 the Rules of the Appellate Terms, Second Department (22 NYCRR) § 730.3 (f) upon the parties or their respective counsel.
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, Gary Tsirelman, PC, counsel for appellant, shall pay a sanction in the sum of $750 to the Lawyers' Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); 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; and it is further,
ORDERED that within 10 days after payment of the sanction, Gary Tsirelman, PC, shall file proof of payment with the Clerk of this Court.
The rules of this court provides, in relevant part, that "[i]f an appeal or the underlying action or proceeding is wholly or partially settled ... the parties or their counsel shall immediately notify the court. Any attorney or party who, without good cause shown, fails to comply with the requirements of this subdivision shall be subject to the imposition of costs and/or sanctions as the court may direct" (Rules of the Appellate Terms, Second Department [22 NYCRR] § 730.3 [f]).
Under the circumstances, the failure of Gary Tsirelman, PC, to promptly advise this Court that a settlement had been reached and that the appeal should not be calendered warrants the imposition of sanctions against appellant's counsel in the amount indicated. While the court's rule does not absolve a respondent's counsel from responsibility for failing to notify the court of the settlement, in the case at bar it undisputed that counsel for appellant advised counsel for respondent that it would notify the court of the settlement. As such, no sanctions are assessed against respondent or its counsel.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur..
ENTER:
Paul Kenny
Chief Clerk