Appellate Division: Second Judicial Department

M272356

E/sl

JOHN M. LEVENTHAL, J.P.

SHERI S. ROMAN

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2018-00294 Christopher Fountoukis, appellant, v Marathon Healthcare Corp., et al., defendants, Leonard C. Aloi, respondent. (Index No. 601727/2015)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Suffolk County, dated October 16, 2017, which was marked withdrawn by decision and order on application of this Court dated February 11, 2020. The appellant perfected the appeal on May 17, 2018, the appellant filed a supplemental appendix on July 19, 2018, the respondent filed a brief on July 23, 2018, and the appellant filed a reply brief on August 24, 2018. On January 9, 2020, this Court emailed counsel for the parties to the appeal inquiring whether there was any impediment to the calendaring of the appeal, counsel did not respond, and the matter was placed on the calendar for February 14, 2020. On February 4, 2020, the appellant's counsel advised this Court that the action had been settled on December 5, 2018, and provided a transcript of the proceedings of the Supreme Court, Suffolk County, which occurred on that date. By order to show cause dated March 11, 2020, the appellant and his counsel, Farrell Fritz, P.C., and the respondent and his counsel, Furman, Kornfeld & Brennan, LLP, 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, Farrell Fritz, 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 Farrell Fritz, 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 in the amount set forth above is warranted.

LEVENTHAL, J.P., ROMAN, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court