Appellate Division: Second Judicial Department

M199681

E/sl

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

THOMAS A. DICKERSON

HECTOR D. LASALLE, JJ.

2014-01169, 2015-05461 Phoenix Asset Management, LLC, respondent- appellant, v X & Y Group Development, LLC, et al., appellants-respondents. (Index No. 14562/10)

DECISION & ORDER ON MOTION

Appeals by X & Y Group Development, LLC, Yi Xia, Jiqing Yue, and Samuel Development Group, LLC, and cross appeals by Phoenix Asset Management, LLC, from an order of the Supreme Court, Nassau County, entered January 8, 2014, and a judgment of the same court entered October 23, 2014. The appellants-respondents filed their brief in this matter on February 24, 2014, the respondent-appellant filed its answering brief on May 2, 2015, the reply briefs were filed on June 2, 2015, and June 13, 2015, respectively, and the matter was placed on the calendar for April 10, 2015. By letter dated April 10, 2015, counsel for the respondent-appellant notified this Court of her position that a portion of the appeal had been rendered academic based upon an order of the Supreme Court, Nassau County entered September 3, 2014, which granted a motion by the respondent-appellant for leave to discontinue one of its causes of action, without prejudice, and the subsequent entry of a final judgment on October 23, 2014. By decision and order on motion of this Court dated July 22, 2015, the parties and/or their counsel were directed to show cause why an order should or should not be made and entered imposing such sanctions and/or costs, if any, against them 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 it of a copy of this decision and order on motion, Morrison Cohen LLP, co-counsel for the appellants-respondents, 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 him of a copy of this decision and order on motion, Steven Cohn, co-counsel for the appellants-respondents, 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 decision and order on motion, Bernard D'Orazio & Associates, P.C., counsel for the respondent-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 their respective sanctions, counsel 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, co-counsels for the appellants-respondents and counsel for the respondent-appellant failed to notify the Court that the matter had been rendered academic, in part, prior to the date that the matter was placed on the calendar. Thus, under the circumstances, sanctions in the amounts set forth above are warranted.

ENG, P.J., MASTRO, DICKERSON and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court