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

MICHAEL L. PESCE, P.J.

THOMAS P. ALIOTTA

MARTIN M. SOLOMON, JJ.

DECISION & ORDER ON MOTION

Appellant QBE Insurance Corporation, having appealed to this court from an order of the Civil Court of the City of New York, Queens County, dated April 5, 2013, and appellant and respondent having attended a Civil Appeals Management Program (CAMP) conference on June 25, 2013, and appellant having perfected the appeal on June 25, 2013, and both parties having been sent a notice on August 25, 2015, advising each that the appeal was to be heard on submission on a date to be determined, and in a letter dated and faxed to the Appellate Term on August 27, 2015, counsel to defendant-appellant having advised the court that the matter had been settled, and attached to the letter was a Stipulation & Discontinuance With Prejudice, settling the underlying action, signed by both counsel and dated October 22, 2013, more than 22 months before the Appellate Term was notified of said disposition. By order to show cause dated October 2, 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 the parties, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Jaffe & Koumourdas, LLP, counsel for appellant, shall pay a sanction in the sum of $250 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 more than 22 months earlier and that the appeal should not be calendered warrants the imposition of sanctions against counsel in the amount indicated. 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., ALIOTTA and SOLOMON, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk