Lemlek v. Israel , 160 A.D.2d 612 ( 1990 )

—Motion to reconsider dismissal of appeal granted and upon reconsideration, this court’s order, entered March 6, 1990, dismissing the appeal for failure to prosecute, on default, is unanimously vacated, with costs, and the appeal reinstated, and an additional award of $1,000 is imposed as sanctions against plaintiffs attorney, to be paid to defendant-appellant Dr. Israel.

At a time when defendant-appellant had timely perfected the appeal in this matter, plaintiff-respondent continued to pursue a motion to dismiss the appeal for failure to prosecute. The defendant-appellant Dr. Israel defaulted on the motion, and the nonappealing defendant hospital, although reportedly served by plaintiff, did not file any opposition, and based upon the representations in plaintiff-respondent’s papers and the absence of a response from the defendant, the motion was granted on default. Defendant’s attorney has brought to the court’s attention the fact that the appeal was timely perfected, and that he had never received notice of the motion to dismiss and that the attorney for the defendant hospital advised him that he never received notice either, notwithstanding plaintiff’s affidavit of service as to both. Accordingly, as the motion dismissing the appeal was erroneously granted on default, the prior order dismissing the appeal is vacated and the motion denied.

Furthermore, because of the errant and frivolous approach by plaintiff’s attorney in pressing a motion to dismiss the appeal for failure to prosecute when the appeal had already been perfected and a brief submitted on behalf of plaintiff both as respondent to the appeal and in favor of her cross appeal, thereby imposing an unnecessary burden on this court and the defendant, we impose a sanction of $1,000 against plaintiff’s attorney (see, Hoeflich v Chemical Bank, 149 AD2d 341, 342). Concur—Sullivan, J. P., Carro, Milonas, Rosenberger and Ellerin, JJ.