Appellate Division: Second Judicial Department

M204503

S/sl

MARK C. DILLON, J.P.

THOMAS A. DICKERSON

SYLVIA O. HINDS-RADIX

JOSEPH J. MALTESE, JJ.

2014-03555 Palmieri Realty, LLC, respondent, et al., plaintiffs, v Timothy J. Mattimore, appellant. (Index No. 20155/08)

DECISION & ORDER ON MOTION

The defendant having appealed to this Court from an order of the Supreme Court, Suffolk County, dated January 16, 2014, and having perfected the appeal on August 1, 2014, and the plaintiff Palmieri Realty, LLC, having filed a respondent's brief on August 11, 2014, and the reply brief having been filed on August 26, 2014, the appeal was placed on this Court's calendar for November 23, 2015. On November 4, 2015, the attorney for the appellant advised the Court that the case had settled and submitted a stipulation seeking leave to withdraw the appeal. By letter dated November 24, 2015, the attorney for the appellant advised the Court that the underlying action had been settled in December 2014. By order to show cause dated November 30, 2015, the parties 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 parties or their 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 it of a copy of this decision and order on motion, L'Abbate, Balkan, Colavita & Contini, L.L.P., 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 decision and order on motion, Flower, Medalie & Markowitz, counsel for the respondent, 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 its 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 and the respondent failed to notify the Court that the action had been settled and the appeal had been rendered academic prior to the date that the appeal was placed on the calendar. Thus, under the circumstances sanctions in the amounts set forth above are warranted.

DILLON, J.P., DICKERSON, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court