Appellate Division: Second Judicial Department

M273578

E/sl

MARK C. DILLON, J.P.

LEONARD B. AUSTIN

HECTOR D. LASALLE

BETSY BARROS, JJ.

2017-07953 Paul Vargas, respondent, v Turner Construction Company, et al., appellants. (Index No. 706087/2014)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Queens County, entered June 19, 2017. The appellants perfected the appeal on March 8, 2018, the respondent filed a brief on April 6, 2018, and the appellants filed a reply brief on April 23, 2018. On January 2, 2020, this Court emailed the appellants' counsel to determine if any impediment prevented the calendaring of the appeal and the appellants' counsel did not respond. The matter was placed on the calendar and submitted on February 18, 2020. On August 7, 2020, in response to a request by this Court, the appellants' counsel advised this Court that the underlying action had settled. Subsequently, the parties advised this Court that the matter had been settled at a mediation and was marked off the Supreme Court trial calendar in November 2019, and that a stipulation of discontinuance had been filed in the underlying action on February 12, 2020. By order to show cause dated August 19, 2020, Malapero Prisco & Klauber, LLP, counsel for the appellants, and Law Offices of Michael S. Lamonsoff, PLLC, the 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 may deem appropriate. Application by the appellants to withdraw the appeal.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the application and the papers filed in relation thereto, it is

ORDERED that the application is granted and the appeal is deemed withdrawn, without costs or disbursements; and it is further,

ORDERED that within 30 days after service upon it of a copy of this decision and order on motion, Malapero Prisco & Klauber, LLP, counsel for the appellants, is directed to pay a sanction in the sum of $1000 to the Lawyers' Fund for Client Protection of the State of New York; and it is further,

ORDERED that Malapero Prisco & Klauber, LLP, 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 Offices of Michael S. Lamonsoff, PLLC, counsel for the respondent, 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 Law Offices of Michael S. Lamonsoff, PLLC, 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 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 Malapero Prisco & Klauber, LLP, and Law Offices of Michael S. Lamonsoff, PLLC, are warranted.

DILLON, J.P., AUSTIN, LASALLE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court