McCORMACK v. New York Times, et al., appellants. (1999)

Appeal by the defendants New York Times, Elsa Brenner, and Chris Maynard from stated portions of an order of the Supreme Court, Westchester County, entered December 5, 1997, which was determined by decision and order of this court dated November 2, 1998 [255 A.D.2d 296, 679 N.Y.S.2d 659].  In the decision and order dated November 2, 1998, counsel for the appellants and the respondents were directed to show cause why an order should not be made and entered imposing such sanctions costs, if any, against the counsel for the respondents pursuant to 22 NYCRR 130-1.1(c) as this court may deem appropriate.

On the court's own motion and on the papers submitted in opposition or relation thereto, it is,

ORDERED that within 20 days after the service upon the counsel for the respondents of a copy of this decision and order on motion with notice of entry, the counsel for the respondents is directed to pay sanctions in the sum of $1,500 to the Lawyers' Fund for Client Protection (see, 22 NYCRR 130-1.1 [b];  130-1.3);  and it is further,

ORDERED that the Clerk of the Supreme Court, Westchester County, shall enter judgment accordingly (see, 22 NYCRR 130-1.2).

The infant plaintiff was deceased prior to the commencement of the action on May 22, 1997.   Although the respondents filed additional pleadings on June 24, 1997, and September 12, 1997, opposed a motion by the appellants to dismiss the complaint, which motion was decided by an order of the Supreme Court, Westchester County, entered December 5, 1997, and were respondents on the appeal from that order, which appeal was orally argued on May 8, 1998, it was not until May 19, 1998, that the respondents first informed the appellants of the death of the infant plaintiff.   The appellants informed this court of the death of the infant plaintiff on June 2, 1998.

The rules of this court require that an attorney notify this court in the event of a party's death (22 NYCRR 670.2[g] ), and the failure to comply with the rule may result in the imposition of sanctions (see, 22 NYCRR 130-1.1[c];  see also, Skinner v. City of Glen Cove, 216 A.D.2d 379, 628 N.Y.S.2d 717).

Counsel's assertion that he was not aware of the foregoing rule is not an excuse for his failure to apprise this court that the infant plaintiff was deceased.   In light of the additional court resources devoted to the disposition of this appeal by virtue of counsel's nondisclosure, the imposition of a $1,500 sanction on counsel for the respondents, payable to the Lawyers' Fund for Client Protection, is appropriate.

MEMORANDUM BY THE COURT.