Appellate Division: Second Judicial Department

M121626

E/mv

RUTH C. BALKIN, J.P.

CHERYL E. CHAMBERS

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2011-05507 In the Matter of Tania I. Comerford, respondent, v Ronald F. Kraus, appellant. (Docket No. F-4189-04/11K)

DECISION & ORDER ON MOTION

Motion by the appellant to stay enforcement of an order of the Family Court, Orange County, dated May 31, 2011, pending hearing and determination of an appeal therefrom, to relieve counsel assigned to represent him by the Family Court, Orange County, and for the assignment of new counsel, and for poor person relief.

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

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

ORDERED that enforcement of the order dated May 31, 2011, is stayed pending hearing and determination of the appeal on condition that the appellant pay the respondent the sum of $404 bi-weekly in child support via the Orange County Support Collection Unit in accordance with an order of support of the Family Court, Orange County, dated January 26, 2006; and it is further,

ORDERED that in the event the appellant fails to comply with the above condition, 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 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 appeals, including the attorney for the child, if any, when counsel serves the appellant's brief upon those parties; and it is further,

ORDERED that former counsel, Maria A. Patrizio, PO Box 328, Goshen, New York 10924, is directed to turn over all papers in the action to the new counsel herein assigned; and it is further,

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

David L. Rich, Esq.

175 Main Street, Suite 711-2

White Plains, New York 10601

(914) 946-3737

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 pursuant to Family Court Act §§ 1118 and 1120, the appeal in the above-entitled proceeding shall be perfected either within 60 days after the receipt by the assigned counsel of the transcripts of the minutes of the proceedings in the Family Court, and the assigned counsel shall notify this Court by letter of the date the transcripts are received, or, in cases where there are no minutes of proceedings to be transcribed, within 60 days of the date of this scheduling order; and it is further,

ORDERED that within 30 days after the date of this order, the assigned counsel shall file in the office of the Clerk of this Court one of the following:

(1) an affidavit or affirmation stating that there are no minutes of any Family Court proceeding to be transcribed for the appeal; or

(2) if there are such minutes, an affidavit or affirmation that the transcripts have been received, and indicating the date received; or

(3) if the transcripts have not been received, an affidavit or affirmation stating that this order has been served upon the clerk of the court from which the appeal is taken, the date thereof, and the date by which the transcripts are expected; or

(4) an affidavit or an affirmation withdrawing the appeal; and it is further,

ORDERED that if none of the above actions described in (1), (2), (3), or (4) above, has been taken within 30 days of the date of this scheduling order, the Clerk of the Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.

BALKIN, J.P., CHAMBERS, COHEN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

The Case Manager assigned to this case is Mr. Rose. Please contact him at 718-722-6487 with any questions.