Sama Physical Therapy, P.C. v. Am. Transit Ins. Co.

Full title: Sama Physical Therapy, P.C., as Assignee of Ramon Delossantos, Respondent…

Court: Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Apr 4, 2016

2016 N.Y. Slip Op. 70234 (N.Y. App. Term 2016)

Opinion

Motion No: 2014-02424 KC

04-04-2016

Sama Physical Therapy, P.C., as Assignee of Ramon Delossantos, Respondent, v. American Transit Ins. Co., Appellant.

MICHELLE WESTON, J.P.

MICHAEL L. PESCE

THOMAS P. ALIOTTA, JJ.

DECISION & ORDER ON MOTION

Appellant American Transit Ins. Co. appealed to this court from an order of the Civil Court of the City of New York, Kings County, dated October 1, 2014. Counsel attended a Civil Appeals Management Program (CAMP) conference on January 13, 2015, and appellant perfected the appeal on March 17, 2015. On or about January 20, 2016, the parties were sent notification that the appeal would appear on the February 3, 2016 ready-day calendar; and on February 2, 2016, counsel for respondent notified the court via letter, that the matter had been settled on November 18, 2014, more than fourteen months earlier, and four months before appellant perfected its appeal. By order to show cause dated February 3, 2016, the parties or their counsel 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 respondent, shall pay a sanction in the sum of $1500 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 him, Daniel J. Tucker, Esq., counsel for appellant, shall pay a sanction in the sum of $750 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 him, Jason Tenenbaum, Esq, 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 within 20 days after service of a copy of this decision and order on motion upon its counsel, appellant American Transit Ins. Co, shall pay a sanction in the sum of $750 to the Commissioner of Taxation & Finance by depositing payment with the clerk of this court (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, and upon appellant by its counsel by regular mail; and it is further,

ORDERED that within 10 days after payment of their respective sanctions, counsel and appellant shall each 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]).

Under the circumstances, the failure of the respective counsel to promptly advise this Court that a settlement had been reached and that the appeal should not be calendered warrants the imposition of sanctions against counsel in the amounts indicated. The court also recognizes appellant's role in facilitating the delay in notifying the court. It is noted with respect to the amounts assessed, the court considered that The Rybak Firm, PLLC, and Daniel J. Tucker have repeatedly violated the aforesaid rule.

WESTON, J.P., PESCE and ALIOTTA, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk