Appellate Division: Second Judicial Department

M74465

E/sl

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

RUTH C. BALKIN

RANDALL T. ENG, JJ.

2008-04555, 2008-05851 In the Matter of Floretta Chow, appellant, v Colize E. Holmes, respondent. (Docket No. V-36791-05)

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from two orders of the Family Court, Kings County, dated April 18, 2008 (Appellate Division Docket No. 2008-04555), and June 20, 2008 (Appellate Division Docket No. 2008-05851), in effect, to withdraw her prior motion, inter alia, to stay enforcement of the orders pending hearing and determination of the appeals, to vacate an order to show cause signed by a Justice of this Court on June 25, 2008, for leave to appeal to this court from the order dated June 20, 2008, to consolidate the appeal from the order dated April 18, 2008, with the appeal from the order dated June 25, 2008, and to stay enforcement of the order dated June 20, 2008, reinstate so much of an order of the same court dated March 28, 2007, as awarded temporary custody of the subject child to the appellant, reinstate a temporary order of protection of the same court dated December 21, 2005, and suspend the respondent's visitation with the subject child, pending hearing and determination of the appeal.

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

ORDERED that the branch of the motion which is for leave to withdraw the prior motion and to vacate the order to show cause signed by a Justice of this Court on June 25, 2008, is granted, the prior motion is deemed withdrawn and the order to show cause dated June 25, 2008, is recalled and vacated; and it is further,

ORDERED that the branch of the motion which is for leave to appeal to this court from the order dated June 20, 2008, is denied as unnecessary as the order is appealable as of right (see Family Ct Act § 1112), and the motion papers are deemed a timely notice of appeal; and it is further,

ORDERED that the branch of the motion which is to stay enforcement of the order dated June 20, 2008, and reinstate so much of the order of the same court dated March 28, 2007, as awarded temporary custody of the subject child to the appellant is granted, and enforcement of the order dated June 20, 2008, is stayed and so much of the order of the same court dated March 28, 2007, as awarded temporary custody of the subject child to the appellant is reinstated pending hearing and determination of the appeal on condition that the appeal is perfected on or before September 17, 2008; and it is further,

ORDERED that in the event the appeal is not perfected on or before September 17, 2008, the court, on its own motion, may vacate the stay, or the respondent may move to vacate the stay, on three days notice; and it is further,

ORDERED that the branch of the motion which is to reinstate the temporary order of protection dated December 21, 2005, is granted, and the temporary order of protection dated December 21, 2005, shall remain in effect pending hearing and determination of the appeal; and it is further,

ORDERED that the branch of the motion which is to suspend the respondent's visitation with the subject child is granted to the extent that the respondent will have only supervised visitation with the subject child pending hearing and determination of the appeal, and that branch of the motion is otherwise denied; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is denied as academic as the appeal from the order dated April 18, 2008 (Appellate Division Docket No. 2008-04555), was dismissed by decision and order on motion of this court dated June 6, 2008; and it is further,

ORDERED that the matter is remitted to the Family Court, Kings County, to issue an order providing the respondent with temporary supervised visitation pending hearing and determination of the appeal.

PRUDENTI, P.J., FLORIO, BALKIN and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court