PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

APPELLATE DIVISION DOCKET NO. CAF 11-00564
DOCKET NO. V-09396-10-10A

MATTER OF DAVID SKALSKI, PETITIONER-APPELLANT, V MISTY BREAZEALE, RESPONDENT-RESPONDENT.

Respondent-respondent having moved to dismiss the appeal taken herein from an order of the Family Court, Erie County, entered in the Office of the Clerk of said Court on December 21, 2010, or, in the alternative, for permission to respond to the appeal as a poor person, and the assignment of counsel,

Now, upon reading and filing the affidavit of Misty Windnagle, formerly known as Misty Breazeale, sworn to February 3, 2011, the notice of motion with proof of service thereof, the affirmation of Francis W. Tesseyman, Jr., Esq., sworn to March 11, 2011, the affirmation of Gerald J. Vella, Esq., filed March 25, 2011, and due deliberation having been had thereon,

It is hereby ORDERED that the motion insofar as it seeks dismissal of the appeal is denied, and

It is further ORDERED that the motion insofar as it seeks permission to respond to the appeal as a poor person and the assignment of counsel is granted, and

It is further ORDERED that Alan Birnholz, Esq., 39 Gatehouse Lane, East Amherst, New York 14051, is hereby assigned as counsel for respondent-respondent herein and may submit ten copies of respondent's brief reproduced in accordance with CPLR 5529.

Entered: May 3, 2011

PATRICIA L. MORGAN, Clerk