Opinion
Motion No: 2017-01397 QC
03-05-2021
State Farm Indemnity Co., as Subrogee of Yvonne Severini, Respondent, v. Parking Systems Valet Service & Cusimano Russo Funeral Home, Appellant.
WAVNY TOUSSAINT
DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER ON MOTION
Appellants having appealed to this court from an order of the Civil Court of the City of New York, Queens County, entered May 12, 2017 and appellants having perfected the appeal on October 5, 2017, and respondent having filed a brief on October 11, 2017, and the parties having been notified in writing by the court that the appeal was to be argued on October 31, 2018, and the appeal having been determined by decision and order of this court dated December 7, 2018, and it having come to the attention of this court by virtue of a presently pending appeal (appeal No. 2019-172 Q C) that the May 12, 2017 order was, in part, superseded by an order entered August 15, 2017 and that a judgment was entered, after a nonjury trial, on October 31, 2018.
Now, on the court's own motion, it is
ORDERED that the decision and order of this court dated December 7, 2018 (61 Misc 3d 155[A], 2018 NY Slip Op 51827[U]) is recalled and vacated and a new decision and order substituted therefor (see appeal No. 2017-1397 Q C, decided simultaneously herewith); and it is further,
ORDERED that the appellants and the respondent or their counsel are directed to show cause before this Court why an order should or should not be made and entered imposing such sanctions and/or costs, if any, against the appellants and the respondent or their respective counsel pursuant to former 22 NYCRR 730.3 (f) as this Court may deem appropriate by each filing an affirmation or affidavit on that issue in the office of the Clerk of this Court and serving one copy of the same on all parties to the action on or before April 5, 2021.
So much of the May 12, 2017 order as granted the branch of plaintiff's motion seeking summary judgment as against Cusimano Russo Funeral Home on the issue of liability was superseded by an order entered August 15, 2017 which, insofar as is relevant here, upon reargument, denied that branch of plaintiff's motion. The parties failed to inform this court of the August 15, 2017 order, which abated so much of the appeal as was from so much of the May 12, 2017 order as granted that branch of plaintiff's motion or, in other words, rendered it moot. The parties also failed to inform this court that a judgment was entered, after a nonjury trial, on October 31, 2018, rendering the entire appeal moot (see Matter of Aho, 39 NY2d 241 [1976]).
Section 730.3 (f) of the rules of this Court in effect at the relevant time provided that:
"If an appeal or the underlying action or proceeding is wholly or partially settled or if any issues are wholly or partially rendered moot . . . 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 such costs and/or sanctions as the court may direct" (22 NYCRR 730.3 [f]).
The Clerk of this Court, or his designee, is directed to serve a copy of this order to show cause upon counsel for the respective parties by regular mail.
ENTER:
Paul Kenny
Chief Clerk