Opinion
Motion No: 2012-02796 KC
07-15-2015
A & S Medical Supply, Inc. as Assignee of Luis Cabrera, Respondent, v. GEICO General Ins. Co., Appellant.
MICHAEL L. PESCE
MARTIN M. SOLOMON, JJ.
DECISION & ORDER ON MOTION
Appellant GEICO General Insurance Co., having appealed to this court from an order of the Civil Court of the City of New York, Kings County, entered May 23, 2012, and appellant and respondent having attended a Civil Appeals Management Program (CAMP) conference on April 11, 2012, and appellant having perfected the appeal on May 2, 2013, and the parties having been notified on March 18, 2015 that the appeal was being placed on a submission calendar, and on April 7, 2015 counsel having submitted a Stipulation to Discontinuance Appeal, signed by both counsel and dated March 24, 2015, and the records of the Civil Court of the City of New York, Kings County, having established that the matter was "discontinued without prejudice" on April 19, 2013, nearly two years earlier, By order to show cause dated May 6, 2015, 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 appellant only, it is
ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Zara Javakov, 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 counsel by regular mail; and it is further,
ORDERED that within 10 days after payment of the sanction, 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, it appears that appellant's counsel reasonably believed that the matter was still active and was unaware of the circumstances under which the Civil Court had discontinued the underlying action. Thus, under the circumstances, no sanctions against appellant or its counsel are warranted. Counsel for respondent, however, failed to respond at all to the court's order to show cause, which in and of itself warrants the imposition of sanctions in the amount indicated.
ELLIOT, J.P., PESCE and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk