VACATION VILLAGE HOMEOWNERS ASSOCIATION INC v. MORDKOFSKY

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Supreme Court, Appellate Division, Third Department, New York.

VACATION VILLAGE HOMEOWNERS' ASSOCIATION INC., Respondent, v. Norman MORDKOFSKY et al., Appellants.

Decided: October 28, 1999

Before:  MIKOLL, J.P., MERCURE, CREW III, YESAWICH JR. and CARPINELLO, JJ. Norman J. Mordkofsky, Loch Sheldrake, appellant in person. Stoloff & Silver LLP (Gary D. Silver of counsel), Monticello, for respondent.

Appeal from a judgment of the Supreme Court (Graffeo, J.), entered November 5, 1997 in Sullivan County, which, inter alia, ordered the foreclosure and sale of defendants' property.

Plaintiff moved in the foreclosure action to recover from defendants unpaid annual assessments due it under a “Declaration of Covenants” entered into by the parties.   Summary judgment was granted to plaintiff on January 21, 1997 by Supreme Court (Bradley, J.) and a Referee was appointed to compute the amount owed.   Defendants' appeal of this order was dismissed by this court for failure to prosecute.

Defendants moved for reconsideration of the January 21, 1997 Supreme Court order.   Supreme Court (Graffeo, J.) denied the motion on August 14, 1997, concluding that the motion was one for reargument for which defendants failed to offer the proper justification.

Following a hearing before a Referee, plaintiff moved to confirm the Referee's report and for entry of judgment of foreclosure and sale;  defendants cross-moved for an order rejecting the report.   Supreme Court, by order entered November 5, 1997, granted plaintiff's motion, prompting the instant appeal.1

Pursuant to an order of this court dated August 10, 1998, the instant appeal was dismissed unless a proper record was submitted as settled by Supreme Court (Malone Jr., J.).   Inasmuch as the instant record fails to comply with the order rendered by Supreme Court settling the record, this appeal is deemed dismissed.   In addition, in view of the flagrant disregard of the order of this court and the order of Supreme Court (Malone Jr., J.), we hereby impose sanctions on defendants in the amount of $1,000 (see, Janitschek v. Trustees of Friends World Coll., 249 A.D.2d 368, 369, 671 N.Y.S.2d 490;  Gregware v. Key Bank of N.Y., 218 A.D.2d 859, 861, 630 N.Y.S.2d 148, lv. denied 87 N.Y.2d 803, 639 N.Y.S.2d 311, 662 N.E.2d 792).

ORDERED that the appeal is dismissed, with costs, and sanctions are imposed on defendants in the amount of $1,000.

FOOTNOTES

1.   Plaintiff took an appeal from a separate Supreme Court order denying its motion for counsel fees which was ultimately decided separately from this appeal;  counsel fees in the amount of $5,000 were awarded to plaintiff (254 A.D.2d 650, 679 N.Y.S.2d 435).

MIKOLL, J.P.

MERCURE, CREW III, YESAWICH JR. and CARPINELLO, JJ., concur.

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