Opinion
2021-72015 Motion 2017-01397 QC
09-16-2021
State Farm Indemnity Co., as Subrogee of Yvonne Severini, Respondent v. Parking Systems Valet Service & Cusimano Russo Funeral Home, Appellant
Unpublished Opinion
MOTION DECISION
MICHELLE WESTON, J.P., 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 this 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, which was recalled and vacated by Decision & Order on Motion dated March 5, 2021, and it having come to the attention of this Court by virtue of appeal No. 2019-172 Q C that the May 12, 2017 order was, in part, superseded by an order entered August 15, 2017 and that a judgment was entered, after a nonjury trial, on October 31, 2018; and the appellants and the respondent or their counsel having been 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;
Now, upon the Decision & Order on Motion dated March 5, 2021, and upon the affirmations of counsel filed in response thereto, it is
ORDERED that within 20 days after service of a copy of this decision and order on motion upon him, the Stephen David Fink, Esq., counsel for appellants, shall pay a sanction in the sum of $1000 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, Jonathan H. Kaufman, Esq., counsel for respondent, shall pay a sanction in the sum of $1000 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 each counsel by regular mail; and it is further, ORDERED that within 10 days after payment of the sanction, each counsel shall file proof of payment of their respective sanction with the Clerk of this Court.
Section 730.3 (c) of the rules of this Court provides, in relevant part, as follows: (c) "Notice of Change of Circumstances... [t]he parties or their attorneys shall likewise immediately notify the court if the appeal should not be calendared because of the death of a party...[a]ny such notification shall be followed by an application for the appropriate relief... [a]ny party who, without good cause shown, fails to comply with the requirements of this subdivision may be subject to the imposition of sanctions." (22 NYCRR 730.3 [c]).
Here, counsel for the parties failed to inform this Court of the August 15, 2017 order, which abated so much of the appeal of the May 12, 2017 order as it granted that branch of plaintiff's motion or, in other words, rendered it moot. Counsel 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 N.Y.2d 241 [1976]). Thus the assessment of sanctions in the amounts indicated are appropriate under the circumstances.