Appellate Division: Second Judicial Department

M271696

E/sl

WILLIAM F. MASTRO, J.P.

SHERI S. ROMAN

JOSEPH J. MALTESE

BETSY BARROS, JJ.

2017-03078, 2018-01295 Bank of America, N.A., respondent, v Efraim Zvi Smilowitz, appellant, et al., defendants. (Index No. 22984/2009)

DECISION & ORDER ON MOTION

Appeals from an order of the Supreme Court, Kings County, dated December 15, 2016, and a judgment of the same court dated January 31, 2018. The appellant perfected the appeals on January 31, 2018, the respondent filed a brief on March 5, 2018, and the appellant filed a reply brief on March 20, 2018. On November 7, 2019, this Court emailed counsel for the parties to the appeals inquiring whether there was any impediment to the calendaring of the appeals, counsel did not respond, and the matter was placed on the calendar for March 6, 2020. On March 4, 2020, the appellant's counsel informed this Court that the action had been settled more than one year ago. On March 5, 2020, the appellant filed a stipulation to withdraw the appeal. By order to show cause dated March 13, 2020, Ras Boriskin, LLC, counsel for the respondent, and Levkovich and Associates, P.C., counsel for the appellant, were directed to show cause before this Court why an order should not be made and entered imposing such sanctions and/or costs, if any, against them pursuant to 22 NYCRR 1250.2(c) as this Court may deem appropriate.

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, Levkovich and Associates, 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 Levkovich and Associates, 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 the Clerk of this Court, or her designee, is directed to serve counsel for the parties to the appeal with a copy of this decision and order on motion, by regular mail.

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 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, a sanction against Levkovich and Associates, P.C., in the amount set forth above is warranted.

MASTRO, J.P., ROMAN, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court