Opinion
Motion No: 2014-02571 QC
06-03-2016
New World Mall, LLC, Respondent-Appellant, v. New World Food Court, Inc., Appellant-Respondent, et al., Undertenants.
THOMAS P. ALIOTTA
MARTIN M. SOLOMON, JJ.
DECISION & ORDER ON MOTION
Appellant-respondent, New World Food Court, Inc., and respondent-appellant, New World Mall, LLC, having appealed to this court from a judgement of the Civil Court of the City of New York, Queens County, dated October 6, 2014, and both counsel having attended a Civil Appeals Management Program (CAMP) conference on May 21, 2015, and appellant-respondent having perfected the appeal on April 7, 2015, and respondent-appellant having filed its brief on May 7, 2015, and on March 2, 2016, the parties having been notified that the appeal would be heard at the March 16, 2016 Term of the court, and on March 3, 2016, the court having received a fax from appellant-respondent's counsel with a copy a stipulation withdrawing the appeal, dated December 1, 2015 and signed by both counsel, three months before counsel notified the Appellate Term. By order to show cause dated April 8, 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, Klein & Solomon, LLP, counsel for appellant, 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 for the parties by regular mail.
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]).
Under the circumstances, the failure of appellant's counsel to promptly advise this Court that a settlement had been reached and that the appeal should not be calendered warrants the imposition of sanctions in the amount indicated. While the court's rule does not absolve a respondent's counsel from responsibility for failing to notify the court of a settlement, in the case at bar it is undisputed that appellant's counsel took responsibility for filing the settlement with the respective courts.
ENTER:
Paul Kenny
Chief Clerk