Appellate Division: Second Judicial Department

M68698

E/sl

STEVEN W. FISHER, J.P.

HOWARD MILLER

RUTH C. BALKIN

CHERYL E. CHAMBERS, JJ.

2007-08205 Joseph Gerdvil, appellant, v Vito J. Rizzo, etc., et al., respondents. (Index No. 20235-02)

DECISION & ORDER ON MOTION

Motion by the appellant for leave to prosecute an appeal from a judgment of the Supreme Court, Suffolk County, entered July 30, 2007, as a poor person, to dispense with printing, for a free transcript, to enlarge the time to perfect the appeal, for the assignment of counsel, and for leave to perfect the appeal by filing only one copy of the brief for each Justice who will hear and determine the appeal.

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

ORDERED that the branches of the motion which are for leave to prosecute the appeal as a poor person, to dispense with printing, for a free transcript, and to enlarge the time to perfect the appeal are granted; and it is further,

ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and respondent's briefs; the parties are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,

ORDERED that pursuant to statute (see CPLR 1102[b]), the stenographer of the trial court shall make and certify two transcripts of the proceedings, if any, of the trial or hearing and shall deliver one to the appellant's attorney and file the other with the Clerk of the trial court together with an affidavit of the fact and date of such delivery and filing; the appellant's counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief upon respondent, and it is further,

ORDERED that in the event of a recovery by the appellant as a result of a judgment or settlement, the appellant shall pay the court fund charged with payment for the transcript, the sum of money expended for the transcript of the minutes, which shall have a lien therefor upon the recovery, and in the event that the appellant prevails, and a judgment is entered in his favor, the expenditure for the transcripts of the minutes are taxable as provided in CPLR 8301; and it is further,

ORDERED that the appellant's time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this court (see 22 NYCRR 670.9[d][2]) and by serving and filing his brief on the appeal is enlarged until June 6, 2008; and it is further,

ORDERED that if a trial or hearing was held, the appellant's counsel is directed to serve a copy of this order upon the Clerk of the Court from which the appeal is taken; and it is further,

ORDERED that payment of the filing fee is waived; and it is further,

ORDERED that the branch of the motion which is for the assignment of counsel is denied without prejudice to Stanley E. Orzechowski, Esq., representing the appellant pro bono; and it is further,

ORDERED that the branch of the motion which is for leave to perfect the appeal by filing only one copy of the brief for each Justice who will hear and determine the appeal is denied.

FISHER, J.P., MILLER, BALKIN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court