of the State of New York for the 2nd, 11th & 13th judicial Districts

MICHAEL L. PESCE, P.J.

MICHELLE WESTON

THOMAS P. ALIOTTA, JJ.

DECISION & ORDER ON MOTION

Appellants NYHQ, NYHQ Prosthetics & Implant Department, Dr. Frank Tuminelli, Dr. Marisa Patt, Dr. Burton Wasserman and Dr Jocelyn Tan, having appealed to this court from an order of the Civil Court of the City of New York, Queens County, dated April 11, 2014, and appellant having perfected the appeal on September 16, 2014, and on or about September 25, 2015, the parties having been sent notification that the appeal would appear on the October 8, 2015 ready-day calendar; and on September 29, 2015 appellant's counsel having advised the court by telephone that the matter had been "closed", and counsel having requested by letter dated October 7, 2015, that the appeal be withdrawn, and the court having confirmed that the matter was settled in the Civil Court on September 24, 2014, a year earlier. By order to show cause dated November 9, 2015, 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 to it by respondent only, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Law Offices of Kral Clerkin Redmond Ryan Perry and Van Etten, LLP, counsel for appellant, shall pay a sanction in the sum of $1000 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 each party or its counsel by regular mail; and it is further,

ORDERED that within 10 days after payment of their respective sanctions, counsel shall file proof of payment of its sanction 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 appellant's counsel 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 counsel in the amount indicated. It is noted with respect to the amount assessed against appellant's counsel, that counsel failed to even submit a response to the court's order to show cause. While the court's rule does not absolve a respondent or it's counsel from responsibility for failing to notify the court of the settlement, in the case at bar it is undisputed that counsel for appellant advised respondent that it would withdraw the appeal and respondent had no reason to believe that counsel would not do so.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk