Opinion
Motion No: 2011-03251 KC
06-16-2014
Pain Management Center of NJ as Assignee of Jessica Colwell, Respondent, v. Travelers Insurance Company, Appellant.
, P.J.
MARTIN M. SOLOMON
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
The defendant-appellant, Travelers Ins. Co., having appealed to this court from an order of the Civil Court of the City of New York, Kings County, dated November 3, 2011, and appellant and respondent having attended a Civil Appeals Management Program (CAMP) conference on April 3, 2012, and appellant having perfected the appeal on July 6, 2012, the appeal was placed upon the January 29, 2014 submission calendar. By letter dated January 24, 2014, counsel for the appellant notified the Court that the matter had been settled, and submitted a Stipulation to Discontinue the action in the Civil Court, signed by both parties, dated July 8. 2013, more than 6 months earlier.
By order to show cause dated April 14, 2014, 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 Offices of Aloy O. Ibuzor, 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 within 20 days after service of a copy of this decision and order on motion upon it, the Law Offices of Melissa Betancourt, PC, counsel for respondent, shall pay a sanction in the sum of $50 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; and it is further
ORDERED that within 10 days after payment of the sanction, the Law Offices of Aloy O. Ibuzor, and the Law Offices of Melissa Betancourt, PC shall each file proof of payment 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]).
Under the circumstances, the failure of the Law Offices of Aloy O. Ibuzor, 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.
The court's rule does not absolve a respondent's counsel from responsibility for failing to notify the court of the settlement. Counsel's reliance on Compas Medical, PC, as assignee of Samuel Okeh v State Farm Mut. Automobile Ins. Co. (2012 NY Slip Op 86823[U]) is misplaced. In that case, it was undisputed that counsel for respondent expressly advised counsel for appellant to notify the court of the settlement and had no reason to believe appellant would not do so. In contrast, here, counsel for respondent simply assumed that appellant would notify the court "based on her experience."
PESCE, P.J., SOLOMON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk