Opinion
Motion No: 2013-00717 QC
10-08-2015
Ultimate Health Products, Inc. as Assignee of Ansel Leslie, Appellant, v. American Transit Ins. Co., Respondent
THOMAS P. ALIOTTA
MARTIN M. SOLOMON, JJ.
DECISION & ORDER ON MOTION
Appellant Ultimate Health Products, Inc. as Assignee of Ansel Leslie, having appealed to this court from an order of the Civil Court of the City of New York, Queens County, dated March 6, 2013, and appellant and respondent having attended a Civil Appeals Management Program (CAMP) conference on May 9, 2013, and appellant having perfected the appeal on August 15, 2013. On May 4, 2015, the parties were sent a notice that the appeal was being placed upon a submission calendar. By letter dated May 26, 2015, appellant's counsel advised the court that the matter had been settled. The court confirmed that the matter was marked withdrawn by the Civil Court on July 2, 2014, nearly 11 months earlier. By order to show cause dated July 30, 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 in response thereto by respondent only, 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 appellant, 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 it, the Law Office of Daniel J. Tucker, counsel for respondent, 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 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 their respective sanctions, counsel 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 either 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. It is noted with respect to the amount assessed against appellant's counsel, the court considered that The Rybak Firm, PLLC, has repeatedly violated the aforesaid rule, and for a second time, failed to respond at all to the court's order to show cause.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk