PRESENT: SMITH, J. P., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.

APPELLATE DIVISION DOCKET NO. CAF 08-01477
DOCKET NO. A-00233-07

IN THE MATTER OF DEJA J. CONSTANCE G. AND DONNELL G., SR., PETITIONERS-RESPONDENTS, V RYAN W. J., RESPONDENT-APPELLANT.

Respondent-appellant having moved for leave to file a late notice of appeal from an order of the Family Court, Yates County, entered in the office of the Clerk of said Court on February 1, 2008, and having applied for permission to proceed as a poor person and the assignment of counsel,

Now, upon reading and filing the affirmation of Keith R. Lord, Esq., dated

June 16, 2008, the notice of motion with proof of service thereof, the certification of Keith R. Lord, Esq., dated July 2, 2008, and due deliberation having been had thereon,

It is hereby ORDERED that the motion for leave to file a late notice of appeal is dismissed as unnecessary, and

It is further ORDERED that the application for permission to proceed as a poor person and the assignment of counsel is dismissed as premature.

Memorandum: The order sought to be appealed does not contain the statement that is required by Family Court Act § 1113 to commence the time to take an appeal when service of the order is made by the court. Absent proof of service of the order by a party to the proceeding, there is no basis upon which to conclude that the time to take an appeal has commenced.

Entered: July 23, 2008

JOANN M. WAHL, Clerk