Appellate Division: Second Judicial Department

M192836

J/ct

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

SANDRA L. SGROI

SYLVIA O. HINDS-RADIX, JJ.

2013-01934 James H. Irish, respondent, v Town of Greenburgh, appellant. (Index No. 25258/09)

DECISION & ORDER ON MOTION

The defendant having appealed to this Court from an order of the Supreme Court, Westchester County, entered December 28, 2012, and the defendant having perfected the appeal on September 23, 2013, and the respondent having filed a brief on November 27, 2013, the matter was placed on this Court's calendar for February 3, 2015. By letter dated February 3, 2015, the appellant's counsel advised this Court that the appellant had "paid the Court Ordered Judgment" entered in this matter and, therefore, the appeal had been rendered academic. The appellant's counsel submitted a stipulation between the parties dated September 29, 2014, agreeing to the amount of preverdict interest and postverdict interest to be added to a jury award, and to a total sum that the appellant would pay to the respondent, provided such payment was made on or before 30 days after the entry of judgment. The appellant's counsel also submitted a copy of a judgment dated October 9, 2014, entered in the Supreme Court, Westchester County, in favor of the respondent and against the appellant in the sum of $175,000 plus costs and disbursements. By order to show cause dated March 25, 2015, the appellant and the respondent, or their respective 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 appellant or its 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 of service upon him of a copy of this decision and order on motion, Timothy W. Lewis, Town Attorney for the Town of Greenburgh, 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 the Clerk of this Court, or her designee, is directed to serve each counsel with a copy of this decision and order on motion; and it is further,

ORDERED that within 10 days after payment of the sanction, counsel for the appellant shall each file proof of payment of the sanction 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, counsel for the appellant failed to notify the Court that the appeal had been rendered academic prior to the date that the appeal was placed on the calendar. Thus, under the circumstances, a sanction in the amount set forth above is warranted.

DILLON, J.P., LEVENTHAL, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court