Appellate Division: Second Judicial Department

M107365

E/sl

MARK C. DILLON, J.P.

HOWARD MILLER

RANDALL T. ENG

CHERYL E. CHAMBERS, JJ.

2010-03069 In the Matter of Elias E. (Anonymous), appellant. (Docket No. D-1270/10)

DECISION & ORDER ON MOTION

Motion by the appellant, in effect, (1) to recall and vacate a decision and order on motion of this court dated June 10, 2010, which dismissed an appeal from a fact-finding order of the Family Court, Orange County, dated March 12, 2010, and denied, as academic, a motion by Stuart I. Greenberg, Esq., counsel for the appellant, inter alia, to be relieved, and (2) to deem the notice of appeal from the fact-finding order to be a notice of appeal from an order of disposition of the same court also dated March 12, 2010.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that the decision and order on motion of this court dated June 10, 2010, is recalled and vacated, and the appeal is reinstated; and it is further,

ORDERED that the notice of appeal from the fact-finding order dated March 12, 2010, is deemed to be a notice of appeal from the order of disposition also dated March 12, 2010 (see CPLR 5512[a]); and it is further,

ORDERED that the motion by assigned counsel, inter alia, to be relieved is 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 and the respondent. 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, except for those minutes previously transcribed and certified (22 NYCRR 671.9); 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, 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:

Warren S. Hecht, Esq.

118-21 Queens Blvd.

Forest Hills, New York 11375

(718) 575-8721

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.

DILLON, J.P., MILLER, ENG and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court