| St. Locher Med., P.C., As Assignee of Hawwah Smith v State Farm Mut. Auto. Ins. Co. |
| Motion No: 2016-00560 KC |
| Slip Opinion No: 2018 NY Slip Op 91374(U) |
| Decided on December 13, 2018 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
of the State of New York for the 2nd, 11th & 13th Judicial Districts
DAVID ELLIOT, J.P.
MICHAEL L. PESCE
BERNICE D. SIEGAL, JJ.
DECISION & ORDER ON MOTION
| St. Locher Medical, P.C., as Assignee of Hawwah Smith, Appellant, v State Farm Mutual Auto. Ins. Co., Respondent. |
Appellant St. Locher Medical, P.C., having appealed to this court from an order of the Civil Court of the City of New York, Kings County, entered January 29, 2016, and counsel having appeared for a CAMP conference on April 19, 2016, and appellant having perfected the appeal on July 22, 2016, and both parties having been sent a notice (to appellant via e-mail and to respondent via mail) on May 17, 2018, advising each that the appeal was to be heard on the May 31, 2018 ready-day calendar, and counsel for appellant having notified the court via fax on May 18, 2018, that the appeal was to be withdrawn, and attached to the letter was a Stipulation of Discontinuance, originally dated December 20, 2017, nearly 5 months earlier. The stipulation was re-dated by hand to May 17, 2018.
Upon the order to show cause and the papers filed by respondent in response thereto, and appellant having failed to respond to the order to show cause, it is
ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Kopelevich & Feldsherova, P.C., counsel for appellant, shall pay a sanction in the sum of $1500 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 sanctions are denied with respect to counsel for respondent; 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 counsel for the appellant by regular mail; and it is further,
ORDERED that within 10 days after payment of the sanction, counsel for appellant and shall file proof of payment with the Clerk of this Court.
The rules of this court provide, 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, the appellant's counsel notified the Court on May 18, 2018, that the case had settled after the appeal had been calendared, although the settlement had occurred on December 20, 2017. Moreover, for the second time, appellant's counsel has failed to even submit a response to the court's order to show cause. Counsel failed to submit a response to the court's order to show cause in St. Locher Medical, P.C., as Assignee of Hawwah Smith v State Farm Mutual Auto. Ins. Co. (2016-592, decided herewith) and previously in Pan Chiropractic as Assignee of Maria Gonzalez v State Farm (2011-1367). Thus, under the circumstances, a sanction in the amount set forth above is warranted.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk