Opinion
Motion No: 2015-01565 KC
05-02-2017
Alleviation Medical Services, P.C., as Assignee of Shelnil Walcott, Respondent, v. Hertz Co., Appellant.
MICHAEL L. PESCE, P.J.
MARTIN M. SOLOMON
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
Appellant Hertz Co., having appealed to this court from an order of the Civil Court of the City of New York, Kings County, dated March 23, 2015, and both counsel having attended a CAMP conference on September 3, 2015, and appellant having perfected the appeal on December 7, 2015, and respondent having filed its brief on December 16, 2015, and notices having been sent to the parties via email on November 9, 2016, advising of oral argument scheduled for November 23, 2016, and appellant's counsel having advised the court by telephone on November 16, 2016, that counsel had entered into a Stipulation Discontinuing Claims After Settlement, signed by both counsel and dated August 3, 2016, more than three months earlier. By order to show cause dated November 22, 2016, counsel for the parties were directed to show cause why an order should or should not be made and entered imposing such sanctions as the court may deem appropriate pursuant to the Rules of the Appellate Terms, Second Department (22 NYCRR) § 730.3 (f) upon the parties or their respective counsel.
Upon the order to show cause and the papers filed in response thereto, it is
ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Law Office of Gary Tsirelman, PC, counsel for respondent, shall pay a sanction in the sum of $250 to the Lawyers' Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,
ORDERED that the Clerk of this Court, or his designee, shall serve a copy of this decision and order on motion upon each counsel by regular mail; and it is further,
ORDERED that within 10 days after payment of the sanction, counsel for respondent shall file proof of payment of its sanction with the Clerk of this Court.
The rules of this court provides, in relevant part, that "[i]f an appeal or the underlying action or proceeding is wholly or partially settled ... the parties or their counsel shall immediately notify the court. Any attorney or party who, without good cause shown, fails to comply with the requirements of this subdivision shall be subject to the imposition of costs and/or sanctions as the court may direct" (Rules of the Appellate Terms, Second Department [22 NYCRR] § 730.3 [f]).
Here, counsel for the appellants and the respondent failed to timely notify the Court that the action had been settled on August 3, 2016, more than three months before advising the court after receipt by the parties of a notice for oral argument. Thus, under the circumstances, a sanction in the amount set forth above is warranted. In assessing the amount of the sanction, the court has considered the fact that the Law Office of Gary Tsirelmen, PC has violated 22 NYCRR § 730.3 (f) on several occasions. The Law Office of Robyn A. Brilliant, PC has not previously violated the court rule.
ENTER:
Paul Kenny
Chief Clerk