Opinion
Motion No: 2018-00059 KC
12-19-2019
Quality Health Supply Corp., as Assignee of Defoe, Ecedro, Appellant, v. MVAIC, Respondent.
THOMAS P. ALIOTTA
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
Appellant Quality Health Supply Corp., as assignee of Ecedro Defoe, having appealed to this court from an order of the Civil Court of the City of New York, Kings County, dated September 14, 2017, and appellant and respondent having attended a Civil Appeals Management Program (CAMP) conference on March 1, 2018, and appellant having perfected the appeal on June 12, 2018, and on August 15, 2019, both parties having received email notices advising each that the appeal was to be heard on September 5, 2019, and counsel for appellant having submitted a Stipulation to Withdraw Appeal, by fax at 5:14PM on September 4, 2019, and having advised the court that a motion to reargue the order appealed from was granted on September 18, 2018, thereby rendering the appeal moot. By order to show cause dated October 16, 2019, 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 on behalf of the parties, it is
ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $2500 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 motion is denied with respect to respondent's counsel; 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 their respective sanctions, counsel 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 appellant and the respondent failed to timely notify the Court that the action had been rendered moot on September 18, 2018, nearly 11 months before the court was notified of same. In setting the amount of the sanction rendered against appellant's counsel, the court considered that the firm has violated the court's rule repeatedly. While it should be noted that respondent shares with appellant the responsibility to notify the court that the appeal had been rendered academic, it is undisputed that respondent's counsel advised appellant's counsel to do so soon after the Civil Court granted the motion to reargue the order appealed from. Thus, under the circumstances, the sanction in the amount set forth above is warranted.
ENTER:
Paul Kenny
Chief Clerk