Appellate Division: Second Judicial Department

M267610

E/mb

MARK C. DILLON, J.P.

LEONARD B. AUSTIN

SYLVIA O. HINDS-RADIX

LINDA CHRISTOPHER, JJ.

2018-01838, 2018-01839 Onewest Bank N.A., respondent, v Donna Schifano, appellant, et al., defendants. (Index No. 57144/15)

DECISION & ORDER ON MOTION

Appeals by Donna Schifano from an order of the Supreme Court, Westchester County, dated January 3, 2018, and an order and judgment (one paper) of the same court also dated January 3, 2018. After the appellant perfected the appeals on May 7, 2018, and the respondent filed a brief on July 6, 2018, the matter was placed on the calendar for November 13, 2019. By letter received on October 7, 2019, the respondent's counsel advised this Court that the appeal was stayed pursuant to 11 USC § 362(a), as the appellant had filed for bankruptcy on October 18, 2018. By order to show cause dated October 11, 2019, the appellant's counsel, Louis M. Spizzirro, and the respondent's counsel, Gross Polowy, LLC, 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 them pursuant to 22 NYCRR 1250.2(c).

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, Louis M. Spizzirro, the appellant's counsel, is directed to pay a sanction in the sum of $500 to the Lawyers' Fund for Client Protection of the State of New York; and it is further,

ORDERED that within 10 days after payment of the sanction, Louis M. Spizzirro shall file proof of payment with the Clerk of this Court; and it is further,

ORDERED that within 20 days of service upon it of a copy of this decision and order on motion, Gross Polowy, LLC, the respondent's counsel, 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 10 days after payment of the sanction, Gross Polowy, LLC, shall file proof of payment with the Clerk of this Court; and it is further,

ORDERED that the Clerk of this Court, or her designee, is directed to serve counsel for the parties with a copy of this decision and order on motion.

Section 1250.2(c) of the Practice Rules of the Appellate Division provides, in pertinent part, that "[t]he parties or their attorneys shall . . . immediately notify the court if the cause should not be calendared because of . . . bankruptcy. . . . Any such notification shall be followed by an application for appropriate relief. Any party or attorney who, without good cause shown, fails to comply with the requirements of this subdivision may be subject to the imposition of sanctions" (22 NYCRR 1250.2[c]). Here, the attorneys for the parties failed to advise this Court that the appeal should not have been calendared because of the appellant's bankruptcy. As a result of that failure, the appeal was mistakenly placed on the calendar. Accordingly, sanctions in the amounts set forth above are appropriate.

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

ENTER:

Aprilanne Agostino

Clerk of the Court