Longevity Med. Supply, Inc. As Assignee of Osmanli Tamezan v American Tr. Ins. Co., 2015 NY Slip Op 76854(U)(App. Term 2d Dept. 2015)
Appellant Longevity Medical Supply, Inc. as Assignee of Osmanli Tamezan, having appealed to this court from an order of the Civil Court of the City of New York, Queens County, dated August 15, 2012, and appellant and respondent having attended a Civil Appeals Management Program (CAMP) conference on October 25, 2012, and appellant having perfected the appeal on March 7, 2013, and respondent having filed its brief on March 22, 2013, the appeal was noticed for a submission calendar on January 7, 2015. On January 26, 2015 a Stipulation Withdrawing Appeal, signed both parties (signed by respondent’s attorney on January 20, 2015) was filed with this court. An examination of the records of the Civil Court having revealed that the underlying action was settled on or before July 2, 2014, more than 6 months earlier. By order to show cause dated April 16, 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 on behalf of 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 $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, Netanel Benchaim, Esq., of counsel to the Law Office of Daniel J. Tucker, counsel for respondent, 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 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 The Rybak Firm, PLLC, 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 appellant’s counsel in the amount 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 submitted no response to the court’s order to show cause in this matter.
The court’s rule does not absolve respondent’s counsel from responsibility for failing to timely notify the court of the settlement. Respondent’s counsel’s “belief” that appellant’s counsel would file the stipulation of settlement is inadequate to deflect counsel’s duty under Rule 730.3 [f].
I think everyone should have had to pay $1,000. I just hope counsel for defendant submits an invoice to defendant for the $250 he has to pay and follows up for payment.
