Irish v. Town of Greenburgh , 7 N.Y.S.3d 168 ( 2015 )

Irish v Town of Greenburgh (2015 NY Slip Op 02452)

Irish v Town of Greenburgh

2015 NY Slip Op 02452

Decided on March 25, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 25, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX, JJ.

2013-01934
(Index No. 25258/09)

[*1]James H. Irish, respondent,

v

Town of Greenburgh, appellant.

Timothy W. Lewis, Town Attorney, Greenburgh, N.Y., for appellant.

James H. Irish, Hartsdale, N.Y., respondent pro se.

DECISION & ORDER

In an action, inter alia, to recover damages for injury to property and for injunctive relief, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered December 28, 2012, as granted those branches of the plaintiff's motion which were for summary judgment on the fifth cause of action and on the issue of liability on the first and seventh causes of action.

ORDERED that the appeal is dismissed as academic, with costs payable to the respondent; and it is further,

ORDERED that on the Court's own motion, the appellant and the respondent, or their respective 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 appellant or its counsel pursuant to 22 NYCRR 670.2(g) 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 24, 2015; and it is further,

ORDERED that the Clerk of this Court, or her designee, is directed to serve counsel for the respective parties with a copy of this decision and order by regular mail.

The defendant appealed to this Court from an order of the Supreme Court, Westchester County, entered December 28, 2012, and perfected the appeal on September 23, 2013. The respondent filed a brief on November 27, 2013, and the matter was placed on this Court's calendar for February 3, 2015. By letter dated February 3, 2015, the appellant's counsel advised this Court that the appellant had "paid the Court Ordered Judgment" entered in this matter and, therefore, the appeal had been rendered academic. The appellant's counsel submitted a stipulation between the parties dated September 29, 2014, agreeing to the amount of preverdict interest and postverdict interest to be added to a jury award, and to a total sum that the appellant would pay to the respondent, provided such payment was made on or before 30 days after the entry of judgment. The appellant's counsel also submitted a copy of a judgment dated October 9, 2014, entered in the Supreme Court, Westchester County, in favor of the respondent and against the appellant in the sum of $175,000 plus costs and disbursements.

Section 670.2(g) of the rules of this Court provides, in relevant part, that "[i]f a cause or the underlying action or proceeding is wholly or partially settled * * * or if any cause should not be calendared * * * for some other reason, the parties or their counsel shall immediately notify the court," and "[a]ny attorney or party who, without good cause shown, fails to comply with the requirements of this subdivision shall be subject to the imposition of such costs and/or sanctions as the court may direct" (22 NYCRR 670.2[g]).

DILLON, J.P., LEVENTHAL, SGROI and HINDS-RADIX, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court