Red Apple Child Development Center v. Community School Districts Two, Twenty, Twenty-Five & Twenty-Eight , 750 N.Y.S.2d 844 ( 2002 )

Dismissal of appeal denied; costs awarded, as indicated. This is Mr. Cohen’s third motion to dismiss the appeal. The first was granted to the extent of vacating the statutory stay unless the appeal was perfected for the December 2002 Term, and the second, returnable after the appeal was perfected, was denied. The present motion is based on the “nullity” of the service of the appeal papers on the attorney of record and on appellants’ purported “actual knowledge” that Mr. Cohen was appellate counsel of record and their “intentional [] fail[ure]” to serve him, despite such knowledge.

Appellant’s counsel, Assistant Corporation Counsel Cheryl Payer, states that her office timely served the record and briefs on the attorney of record, Joseph Cacciato. In addition, Ms. Payer states that when she noticed that a motion to dismiss the appeal was made by Mr. Cohen, who was not the attorney of record, Ms. Payer communicated with him and agreed to, and did, e-mail him courtesy copies of the brief and note of issue. Since the record on appeal was not on her computer, she was not able to e-mail it. A few days later, when Mr. Cohen demanded service of the record and threatened to make an emergency motion before this Court, the Corporation Counsel’s office ordered reproduction of the record and sent it to Mr. Cohen by overnight mail. He received it one day before he filed this motion, which, significantly, makes no mention of his conversations with Ms. Payer or of the fact that he was in receipt of all the papers. In view of Mr. Cohen’s last two motions to dismiss the appeal, both completely devoid of merit, and his concealment of the facts regarding appellants’ cooperation, we find his conduct frivolous under part 130 of the Rules of the Chief Administrator (22 NYCRR 130-1.1 [c] [1], [2]). Under the circumstances, an award of costs in the sum of $600, the amount requested by appellants, is appropriate. Concur— Williams, P.J., Buckley, Sullivan and Lerner, JJ.