Appellate Division: Second Judicial Department

M234355

E/ct

MARK C. DILLON, J.P.

LEONARD B. AUSTIN

SYLVIA O. HINDS-RADIX

JOSEPH J. MALTESE, JJ.

2015-02309 Jose Cueva, appellant, v Skanska USA Building, Inc., respondent. (Index No. 15270/11)

DECISION & ORDER ON MOTION

The plaintiff having appealed to this Court from an order of the Supreme Court, Queens County, dated January 8, 2015, and having perfected the appeal on September 3, 2015, the respondent having filed a brief on November 4, 2015, and the plaintiff having filed a reply brief on November 13, 2015, the matter was placed on this Court's calendar for March 22, 2017. By letter dated March 16, 2017, the plaintiff's appellate counsel sought to withdraw the appeal on the ground that the case had been settled. On March 16, 2017, the plaintiff's appellate counsel submitted a copy of a stipulation dated November 10, 2016, signed by the parties' respective trial counsel, discontinuing the above-entitled action. By order to show cause dated April 28, 2017, the respective counsel for the parties, including Lipsig, Shapey Manus & Moverman, trial counsel for the appellant, Pollack, Pollack, Isaac & De Cicco, appellate counsel for the appellant, and Fabiani, Cohen & Hall, counsel for the respondent, 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 respective counsel pursuant to 22 NYCRR 670.2(g) as this Court may deem appropriate .

Now, 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, Lipsig, Shapey Manus & Moverman, trial counsel for the appellant, is directed to pay a sanction in the sum of $350 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, Lipsig, Shapey Manus & Moverman shall 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, Lipsig, Shapey Manus & Moverman 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.

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

ENTER:

Aprilanne Agostino

Clerk of the Court