Lemlek v. Israel

Appellate Division of the Supreme Court of New York

Lemlek v. Israel

160 A.D.2d 612

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 1990

StatusPublished

This text of 160 A.D.2d 612 (Lemlek v. Israel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lemlek v. Israel, 160 A.D.2d 612 (N.Y. Ct. App. 1990).

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Opinion

—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 plain[613]*613tiff’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.

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—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 plain[613]*613tiff’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.

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160 A.D.2d 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemlek-v-israel-nyappdiv-1990.

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