Appellate Division: Second Judicial Department

M271001

E/sl

RUTH C. BALKIN, J.P.

JEFFREY A. COHEN

BETSY BARROS

ANGELA G. IANNACCI, JJ.

2017-09851 David Rishty, respondent, v Sushi Tokyo CI, Inc., appellant, et al., defendant. (Index No. 10705/14)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Kings County, dated August 1, 2017. The appellant perfected the appeal on February 14, 2018, and, after the appellant's counsel failed to respond to three status inquiries from this Court, on July 15, 2019, July 25, 2019, and August 8, 2019, respectively, the matter was calendared for oral argument or submission on January 9, 2020. On December 27, 2019, the appellant's counsel advised this Court that the underlying action had been settled and on December 31, 2019, the appellant filed a letter withdrawing the appeal. Subsequently the appellant provided the Court with a stipulation of discontinuance of the underlying action dated March 23, 2018. By order to show cause dated February 7, 2020, the appellant and its counsel, Garbarini & Scher, P.C., and the respondent and his counsel, Frekhtman & Associates, 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 30 days after service upon it of a copy of this decision and order on motion, Garbarini & Scher, P.C., counsel for the appellant, 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 Garbarini & Scher, P.C., shall file proof of payment with the Clerk of this Court, within 21 days after payment of the sanction, via email at [email protected]; and it is further,

ORDERED that within 30 days after service upon it of a copy of this decision and order on motion, Frekhtman & Associates, counsel for the respondent, is directed to pay a sanction in the sum of $100 to the Lawyers' Fund for Client Protection of the State of New York; and it is further,

ORDERED that Frekhtman & Associates, shall file proof of payment with the Clerk of this Court, within 21 days after payment of the sanction, via email at [email protected]; 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, by regular mail and via email.

Section 1250.2(c) of the Rules of the Appellate Division (22 NYCRR 1250.2[c]), provides, in pertinent part, that "[t]he parties or their attorneys shall immediately notify the court when there is a settlement of a matter or any issue therein or when a matter or any issue therein has been rendered moot . . . 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." Here, counsel for the appellant and counsel for the respondent 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.

BALKIN, J.P., COHEN, BARROS and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court