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

MICHAEL L. PESCE, P.J.

MICHELLE WESTON

DAVID ELLIOT, JJ.

DECISION & ORDER ON MOTION

Appellant T & S Medical Supply Corp., having appealed to this court from an order of the Civil Court of the City of New York, Kings County, dated May 15, 2015, and counsel having appeared for a CAMP conference on October 1, 2015, and appellant having perfected the appeal on January 14, 2016, and respondent having filed a brief on February 8, 2016, and both parties having been sent a notice on November 29, 2017, advising each that the appeal was to be heard on submission on December 15, 2017, and counsel for plaintiff-appellant having notified the court via letter dated December 6, 2017, that the appeal was to be withdrawn, and counsel having attached to the letter a Stipulation of Discontinuance With Prejudice dated September 6, 2016, 15 months earlier. By order to show cause dated December 15, 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 to the appeal or their respective counsel pursuant to 22 NYCRR 730.3 (f) 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 after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $2500 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 within 20 days after service of a copy of this decision and order on motion upon it, the Law Offices of Moira Doherty, PC, counsel for respondent, shall pay a sanction in the sum of $1000 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 counsel by regular mail; 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.

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]).

Here, counsel for the appellant and the respondent failed to timely notify the Court that the action had been settled on September 6, 2016, fifteen months before counsel received notice that the appeal was to be heard on submission. In setting the amount of the sanction, the court considered that The Rybak Firm has repeatedly violated the aforesaid rule. With respect to respondent's counsel, while it is accurate, as her firm suggests, that it was "not their appeal," under the rule both parties bear the responsibility to notify the court of a settlement. Thus, under the circumstances, the failure of counsel to promptly advise this court that the appeal should not be calendared warrants imposition of sanctions in the amounts indicated.

ENTER:

Paul Kenny

Chief Clerk