Appellate Division: Second Judicial Department

M242610

E/ct

JOHN M. LEVENTHAL, J.P.

LEONARD B. AUSTIN

JEFFREY A. COHEN

VALERIE BRATHWAITE NELSON, JJ.

2016-07894 Philomena Wilson, appellant, v Metropolitan Transit Authority, et al., respondents. (Index No. 700093/15)

DECISION & ORDER ON MOTION

The plaintiff having appealed to this Court from an order of the Supreme Court, Queens County, dated July 8, 2016, and having perfected the appeal on August 31, 2016, and the defendants having filed a respondents' brief on October 27, 2016, and the reply brief having been filed on November 7, 2016, the appeal was placed on this Court's calendar for September 29, 2017. By letter dated September 14, 2017, the attorney for the defendants advised the Court that the case had settled. Attached to the letter was a stipulation of discontinuance dated May 12, 2017. By letter dated September 25, 2017, the attorney for the plaintiff advised the Court that the case had settled and requested leave to withdraw the appeal. By order to show cause dated October 4, 2017, the parties or their 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 parties or their counsel pursuant to 22 NYCRR 670.2(g) as this Court deemed 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, Law Office of Michael H. Joseph, PLLC, 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 within 20 days of service upon it of a copy of this decision and order on motion, Jeffrey Samel & Partners, counsel for the respondents, 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 their respective sanctions, counsel shall each file proof of payment of its 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 and counsel for the respondents failed to notify this 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, sanctions in the amounts set forth above are warranted.

LEVENTHAL, J.P., AUSTIN, COHEN and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court