Opinion
2016-215 K C
06-15-2018
St. Locher Medical, P.C., as Assignee of Karl Jagdeo, Appellant, v. State Farm Mutual Auto Ins. Co., Respondent.
MICHAEL L. PESCE
BERNICE D. SIEGAL, JJ.
DECISION & ORDER ON MOTION
(ORIGINAL Date of Decision & Order On Motion Dated June 11, 2018)
Appellant St. Locher Medical, P.C., having appealed to this court from an order of the Civil Court of the City of New York, Kings County, entered December 7, 2015, and counsel having appeared for a CAMP conference on February 25, 2016, and appellant having perfected the appeal on June 2, 2016, and both parties having been sent a notice via e-mail on March 13, 2018, advising each that the appeal was to be heard on the March 27, 2018 ready-day calendar, and counsel for appellant having notified the court via letter on March 23, 2018, that the appeal was to be withdrawn, and attached to the letter was a Stipulation of Discontinuance dated October 25, 2017, more than 4 months earlier. By order to show cause dated April 19, 2018, 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 by counsel 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, Kopelevich & Feldsherova, PC, counsel for appellant, shall pay a sanction in the sum of $500 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 its sanction, counsel for appellant shall file proof of payment of its sanction with the Clerk of this Court.
June 15, 2018
ST. LOCHER MEDICAL, P.C. v STATE FARM MUT. AUTO INS. CO.
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 failed to timely notify the 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. Thus, under the circumstances, a sanction in the amount set forth above is warranted. In considering the sanction, the court took into consideration counsel's previous violation of the rule. While respondent has a concurrent duty under the rule to advise the court of settlement, it appears that respondent's counsel justifiably awaited a promised stipulation withdrawing the appeal from appellant's counsel. Thus, no sanction is assessed against respondent or its counsel.
ELLIOT, J.P., PESCE and SEIGAL, J.J., concur
ENTER:
Paul Kenny
Chief Clerk
June 15, 2018
ST. LOCHER MEDICAL, P.C. v STATE FARM MUT. AUTO INS. CO.