Appellate Division: Second Judicial Department

M287046

KS/

MARK C. DILLON, J.P.

COLLEEN D. DUFFY

CHERYL E. CHAMBERS

LINDA CHRISTOPHER, JJ.

2018-00053 Eugenie J. Barnett, respondent, v Diamond Finance Company, Inc., appellant. (Index No. 514544/2015)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Kings County, dated October 20, 2017. The defendant having perfected the appeal on May 17, 2019, the respondent having filed his brief on December 30, 2019, and the appellant having filed its reply brief on January 8, 2020, the appeal was argued on this Court's calendar for March 3, 2020, and the appeal was determined by decision and order of this Court dated October 21, 2020. Subsequently, the appellant moved to vacate the decision and order dated October 21, 2020, asserting that an involuntary petition was filed on April 14, 2020, against the appellant pursuant to Chapter 7 of the Bankruptcy Code in the Eastern District of New York, under Case No. 820-71877-A736. That motion was granted in a decision and order on motion of this Court, dated February 2, 2022. By order to show cause dated February 2, 2022, counsel for the appellant, Weinberg, Gross & Pergament, LLP, former counsel for the appellant, Steven M. Feinberg, Esq. LLC, and counsel for the respondent, Levi Huebner & Associates, PC, 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 Steven M. Feinberg, Esq. LLC, 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 20 days of service upon it of a copy of this decision and order on motion, Steven M. Feinberg, Esq. LLC, the appellant's former counsel, is directed to pay a sanction in the sum of $1,000 to the Lawyers' Fund for Client Protection of the State of New York; and it is further,

ORDERED that within 10 days after payment of the sanction, Steven M. Feinberg, Esq. LLC, shall file proof of payment with the Clerk of this Court; 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 at the email address provided to this Court.

Section 1250.2(c) of the Practice Rules of the Appellate Division provides, in pertinent part, that "[t]he parties or their attorneys shall . . . immediately notify the court if the cause should not be calendared because of . . . bankruptcy. . . . 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" (22 NYCRR 1250.2[c]). Here, Steven M. Feinberg, Esq. LLC, the appellant's former counsel, failed to advise this Court that the appeal was stayed pursuant to 11 USC § 362(a), due to the appellant's bankruptcy. As a result of that failure, the decision and order of this Court determining the appeal was issued at a time that the stay pursuant to 11 USC § 362(a) was in effect. Accordingly, sanctions in the amount set forth above are appropriate.

DILLON, J.P., DUFFY, CHAMBERS and CHRISTOPHER, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court