Appellate Division: Second Judicial Department

M95176

E/sl

MARK C. DILLON, J.P.

FRED T. SANTUCCI

ANITA R. FLORIO

L. PRISCILLA HALL, JJ.

2009-09949 In the Matter of David R. Swinson, Sr., appellant, v Sherita Brewington, respondent. (Docket Nos. V-25760/09, V-26084/09)

DECISION & ORDER ON MOTION

Motion by the appellant, inter alia, for leave to appeal to this court from an order of the Family Court, Kings County, dated October 26, 2009, to stay enforcement of the order and to direct that the subject child be returned to the care and custody of the appellant, where he resides in Tennessee, pending hearing and determination of the appeal, for poor person relief, and for the assignment of counsel.

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

ORDERED that the branch of the motion which is for leave to appeal is granted; and it is further,

ORDERED that the branch of the motion which is to stay enforcement of the order and to direct that the subject child be returned to the care and custody of the appellant, where he resides in Tennessee, is granted, and enforcement of the order is stayed and the subject child is returned to the care and custody of the appellant, where he resides in Tennessee, pending hearing and determination of the appeal or a final custody order of the Family Court, Kings County, whichever occurs first; and it is further,

ORDERED that the branches of the motion which are for poor person relief and for the assignment of counsel 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 briefs of the appellant, the respondent, and the attorney for the child, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act § 1116); and it is further,

ORDERED that the stenographer(s) and/or the transcription service(s) is/are required promptly to make and certify two transcripts of the proceedings, if any, in the case of stenographers, both transcripts shall be filed with the clerk of the Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to the appellant's counsel, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to the assigned counsel. Assigned counsel is directed to provide copies of said transcripts to all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves the appellant's brief upon those parties; and it is further,

ORDERED that pursuant to Family Court Act § 1120 the following named attorney is assigned as counsel to prosecute the appeal:

Etta Ibok, Esq.

26 Court Street - Suite 2016

Brooklyn, New York 11242

(718) 243-0993

and it is further,

ORDERED that the assigned counsel shall prosecute the appeal expeditiously in accordance with any scheduling order or orders issued pursuant to § 670.4(a) of the rules of this court (22 NYCRR 670.4[a]); and it is further,

ORDERED that assigned 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 the motion is otherwise denied.

DILLON, J.P., SANTUCCI, FLORIO and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court