Appellate Division: Second Judicial Department

M272559

E/jr

RUTH C. BALKIN, J.P.

JOHN M. LEVENTHAL

SYLVIA O. HINDS-RADIX

HECTOR D. LASALLE, JJ.

2019-01259 Kelly Linden, et al., plaintiffs-respondents, v Brixmor Property Group, et al., appellants, Con-Kel Landscaping Inc., defendant-respondent. (Index No. 611029/2015)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Suffolk County, dated December 28, 2018. The appellant perfected the appeal on April 10, 2019, the plaintiffs-respondents filed a brief on April 17, 2019, the defendant-respondent filed a brief on June 6, 2019, and the appellants filed a reply brief on June 13, 2019. On April 14, 2020, this Court emailed the parties to determine if any impediment prevented the calendaring of the appeal and no party responded. Subsequently, the matter was placed on the calendar for June 1, 2020. On May 29, 2020, this Court received a letter stating that the case had settled and on June 1, 2020, the parties filed a stipulation withdrawing the appeal. A stipulation of discontinuance had been filed in the underlying action on November 6, 2019. By order to show cause dated June 12, 2020, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, the appellants' counsel, Gruenberg Kelly Della, the plaintiffs-respondents' counsel, and Law Office of Charles F. Harms, Jr., the defendant-respondent's counsel, 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) as this Court deemed 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, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, counsel for the appellants, 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 Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger 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, Law Office of Charles F. Harms, Jr., counsel for the defendant-respondent, 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 Law Office of Charles F. Harms, Jr., 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.

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 appellants and counsel for the defendant-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, without good cause. Thus, under the circumstances, sanctions in the amount set forth above imposed against Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger and Law Office of Charles F. Harms, Jr., are warranted.

BALKIN, J.P., LEVENTHAL, HINDS-RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court