Opinion
2010-02906 Q C
07-27-2012
W.H.O. Acupuncture, P.C. as Assignee of Dixon Richard, Appellant, v. State Farm Mutual Automobile Ins. Co., Respondent.
, P.J.
JAIME A. RIOS
THOMAS P. ALIOTTA, JJ.
DECISION & ORDER ON MOTION
Appellant W.H.O. Acupuncture, P.C. a/a/o Richard Dixon, having appealed to this court from an order of the Civil Court of the City of New York, Queens County, dated June 10, 2010, and appellant having perfected the appeal on June 3, 2011, the matter was placed on this court's calendar for May 2, 2012. By letter dated April 30, 2012, counsel for respondent sought permission to withdraw the appeal, advising that the underlying matter had previously been settled in September 2011. Attached to that letter was a stipulation discontinuing the underlying matter dated September 2, 2011. By order to show cause dated May 7, 2012, 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, the Law Office of David O'Connor, LLC, 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 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 the Law Office of David O'Connor, LLC, 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 the settlement, in the case at bar it is undisputed that counsel for respondent advised appellant's counsel to withdraw the appeal and had no reason to believe that he would not do so.
PESCE, P.J., RIOS and ALIOTTA, JJ., concur..
ENTER:
Paul Kenny
Chief Clerk