Appellate Division: Second Judicial Department

M229868

S/afa

LEONARD B. AUSTIN, J.P.

ROBERT J. MILLER

HECTOR D. LASALLE

FRANCESCA E. CONNOLLY, JJ.

2015-03517 Wells Fargo Bank, N.A., appellant, v Betty Lewis, respondent, et al., defendant. (Index No. 2556/09)

DECISION & ORDER ON MOTION

The plaintiff having appealed to this Court from an order of the Supreme Court, Kings County, dated December 19, 2011, and having perfected the appeal on August 12, 2015, and no brief having been filed by the respondent, the matter was placed on this Court's calendar for January 30, 2017. By application dated January 23, 2017, the appellant withdrew the appeal, stating that the foreclosure action had been discontinued in November 2016. By order to show cause dated February 26, 2017, 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 it of a copy of this decision and order on motion, Woods Oviatt Gilman, LLP, 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 shal 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 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, a sanction in the amount set forth above is warranted.

AUSTIN, J.P., MILLER, LASALLE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court