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

DOCKET NO. CA 12-00240

JAMES WILLIAM SCHNITTER, PLAINTIFF-APPELLANT, V FE MARIANN CARROLL-SCHNITTER, DEFENDANT-RESPONDENT. (Monroe County Index No. 08/15188)

Appellant and the Attorney for the Child, Carolyn L. Chase, Esq., having moved, upon the return of an order to show cause granted by the Honorable Stephen K. Lindley on March 19, 2012, for a stay of all proceedings to enforce the order of the Supreme Court entered in the Office of the Clerk of the County of Monroe on December 29, 2011, pending the hearing and determination of the appeal taken herein, and

Respondent having moved to dismiss the appeal from the order entered December 29, 2011, on the ground that appellant consented to the order, and having moved for permission to proceed as a poor person and assignment of counsel,

Now, upon reading and filing the affidavit of James W. Schnitter sworn to March 12, 2012, the affidavit of Steven B. Levitsky, Esq., sworn to March 12, 2012, the affidavit of Carolyn L. Chase, Esq., sworn to March 12, 2012, said show cause order with proof of service thereof, the affirmations of David R. Juergens, Esq., dated March 14, 2012, and March 20, 2012, the affirmation of Fe Mariann Carroll-Schnitter sworn to March 15, 2012, the notices of motion with proof of service thereof, the affirmation of Gary Muldoon, Esq., dated March 23, 2012, the affidavit of James W. Schnitter sworn to March 23, 2012, and the statement of Brett C. Granville, Esq. dated March 28, 2012, regarding respondent's motion for permission to proceed as a poor person and assignment of counsel, and due deliberation having been had thereon,

It is hereby ORDERED that, insofar as the Attorney for the Child moves for a stay, the motion is dismissed without prejudice, and

It is further ORDERED that, insofar as appellant moves for a stay, the motion is denied, and

It is further ORDERED that respondent's motion to dismiss the appeal is denied with leave to raise the issue of consent in the briefs, and

It is further ORDERED that respondent's motion for permission to proceed as a poor person and assignment of counsel is granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614, is hereby assigned as counsel for the purposes of this appeal, and

It is further ORDERED that the Clerk of the County of Monroe is hereby directed to provide Timothy P. Donaher, Esq., with copies of all papers and transcripts of stenographic, digitally recorded, or audiotaped minutes, if any, of the proceedings had and filed in said Clerk's Office upon which the appeal is based.

Memorandum: The Attorney for the Child did not take an appeal from the order entered December 29, 2011, and it appears that the order may have been granted without notice to the Attorney for the Child.

Entered: April 5, 2012

Frances E. Cafarell, Clerk