Matter of Schwartz (Schwartz)

Matter of Schwartz (Schwartz) 2019 NY Slip Op 08565 Decided on November 27, 2019 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 November 27, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
REINALDO E. RIVERA
JOHN M. LEVENTHAL
LINDA CHRISTOPHER, JJ.
2018-07591

[*1]In the Matter of Paul Charles Schwartz, deceased.

and

Harold Schwartz, etc., petitioner-appellant; Charles Schwartz, et al., respondents-respondents. (File No. 384840J/15)

DECISION & ORDER

Motion by the respondent-respondent Charles Schwartz on an appeal from an order of the Surrogate's Court, Nassau County, dated April 13, 2018, to impose a sanction upon the petitioner-appellant and the petitioner-appellant's counsel pursuant to 22 NYCRR 670.3(d)(2)(v), based on their failure to appear for a mandatory mediation session noticed pursuant to 22 NYCRR 670.3(d).

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted to the extent that Law Offices of Seidner & Associates, P.C., the petitioner-appellant's counsel, is directed to pay a sanction in the sum of $750 to the Lawyers' Fund for Client Protection of the State of New York, and the motion is otherwise denied; and it is further,

ORDERED that Law Offices of Seidner & Associates, P.C., shall pay the sanction within 20 days of service upon it of a copy of this decision and order on motion, and shall file proof of payment with the Clerk of this Court within 10 days after payment of the sanction; and it is further,

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

Pursuant to a Notice of Reference of the Mandatory Civil Appeals Mediation Program, the petitioner-appellant's counsel, the petitioner-appellant, counsel for the respondent-respondent Charles Schwartz, and the respondent-respondent Charles Schwartz were directed to appear for a mandatory mediation session. The petitioner-appellant's counsel, Law Offices of Seidner & Associates, P.C., failed to insure that the petitioner-appellant appear for the regularly scheduled mandatory mediation session, without good cause, and there is no indication that the attorney who appeared for the petitioner-appellant possessed the authority to settle the matter. In this regard, we consider that the lead counsel for the petitioner-appellant sought, and was granted, an adjournment of the mediation session so that he could personally attend and yet inexplicably sent a different attorney in his stead on the adjourned date. Although parties are not compelled to resolve their appeals by settlement, parties and their counsel are required to attend mediation sessions and may not arrogate unto themselves the authority to dispense with a mediation session or to render [*2]such sessions nugatory by refusing to appear and participate in them. Accordingly, we determine that a sanction in the amount set forth above is appropriate (see 22 NYCRR 670.3[d][2][ii],[v]). Since the respondent-respondent Charles Schwartz did not indicate the costs incurred in connection with the mediation session, an award of costs has not been considered by this Court.

SCHEINKMAN, P.J., RIVERA, LEVENTHAL and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court