Appellate Division: Second Judicial Department

M237992

E/afa

REINALDO E. RIVERA, J.P.

SANDRA L. SGROI

ROBERT J. MILLER

VALERIE BRATHWAITE NELSON, JJ.

2017-03676 Israel Kashipour, et al., respondents, v Wilmington Savings Fund Society, FSB, etc., appellant. (Index No. 605756/15)

DECISION & ORDER ON MOTION

Appeal by Wilmington Savings Fund Society, FSB, from a judgment of the Supreme Court, Nassau County, entered April 6, 2017. By order to show cause dated June 5, 2017, this Court denied the appellant's motion, inter alia, to stay enforcement of the judgment pending the appeal, and directed the parties to show cause why an order should or should not be made and entered (1) dismissing the appeal on the ground that no appeal lies as of right from a "final . . . judgment . . . entered subsequent to an order of the Appellate Division which disposes of all the issues in the action" (CPLR 5701[a][1]), and leave to appeal had not been granted, and (2) imposing sanctions and/or costs, if any, including appellate counsel fees, against Wilmington Savings Fund Society, FSB, pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate. Separate applications by Wilmington Savings Fund Society, FSB, to withdraw the appeal from the judgment, and requesting withdrawal of this Court's order to show cause.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the applications and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the appeal is dismissed, without costs or disbursements (see CPLR 5701[a][1]); and it is further,

ORDERED that the applications are denied; and it is further,

ORDERED that Wilmington Savings Fund Society, FSB, is directed to pay a sanction in the sum of $5,000 (see 22 NYCRR 130-1.1[a]); Wilmington Savings Fund Society, FSB, shall deposit the sum of $5,000 with the Clerk of this Court for transmittal to the Commissioner of Taxation and Finance (see 22 NYCRR 130-1.1[b]; 130-1.3), within 20 days of service upon its counsel of a copy of this decision and order on motion; and it is further,

ORDERED that Wilmington Savings Fund Society, FSB, is directed to pay the respondents' reasonable attorney's fees in the sum of $4,695 (see 22 NYCRR 130-1.1[a]); Wilmington Savings Fund Society, FSB, shall pay counsel for the respondents the sum of $4,695, within 20 days of service upon its counsel of a copy of this decision and order on motion, and shall file proof of payment of the attorney's fees with the Clerk of this Court within 10 days after payment of the fees; and it is further,

ORDERED that the Clerk of the Supreme Court, Nassau County, shall enter judgment accordingly (see 22 NYCRR 130-1.2); 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.

On a prior appeal in the above-entitled action, this Court reversed an order of the Supreme Court, Nassau County, granted a motion by Israel Kashipour and Tara Chayut Kashipour for summary judgment on the complaint, and remitted the matter to the Supreme Court for the entry of a judgment canceling and discharging of record the subject mortgage (see Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985). Subsequently, the Supreme Court entered judgment canceling and discharging of record the subject mortgage, and the defendant, Wilmington Savings Fund Society, FSB, filed a notice of appeal to this Court from the judgment, and moved, inter alia, to stay enforcement of the judgment.

The conduct of Wilmington Savings Fund Society, FSB, in filing the notice of appeal from the judgment entered subsequent to an order of the Appellate Division which disposed of all the issues in the above-entitled action and in moving, inter alia, to stay enforcement of the judgment pending determination of the appeal constitutes frivolous conduct under 22 NYCRR 130-1.1, since no appeal lies from such judgment (see CPLR 5701[a][1]). Accordingly, the award of a sanction in the amount set forth above is appropriate.

Furthermore, in light of the affirmation of counsel for Israel Kashipour and Tara Chayut Kashipour, setting forth the legal fees incurred in responding to the frivolous conduct of Wilmington Savings Fund Society, FSB, an award of attorney's fees in the sum of $4,695 is reasonable and warranted.

RIVERA, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court