Appellate Division: Second Judicial Department

M141110

E/mv

THOMAS A. DICKERSON, J.P.

ARIEL E. BELEN

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2012-01689 Mark Musachio, respondent, v Annmarie Musachio, appellant. (Index No. 21672-04)

DECISION & ORDER ON MOTION

Appeal by Annmarie Musachio from a judgment of the Supreme Court, Suffolk County, entered December 29, 2011. By order to show cause dated June 11, 2012, the parties or their attorneys were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal in the above-entitled action for failure to comply with a decision and order on motion of this Court dated March 21, 2012. Motion by the appellant pro se for leave to prosecute the appeal as a poor person and for the assignment of counsel.

Now, upon the order to show cause and the papers filed in response thereto, and upon the appellant's motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the appellant's motion 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, the respondent, and the attorney for the children, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other; 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 Supreme Court, and the clerk of the Supreme 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 Supreme 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 children, if any, when counsel serves the appellant's brief upon those parties; and it is further,

ORDERED that pursuant to Judiciary Law §35 the following named attorney is assigned as counsel to prosecute the appeal:

Susan A. DeNatale, Esq.

1235 Montauk Highway - Suite B

Mastic, N.Y. 11950

631-772-1246

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 decision and order on motion upon the clerk of the court from which the appeal is taken; and it is further,

ORDERED pursuant to § 670.4(a) of the Rules of this Court (22 NYCRR 670.4[a]), the appeal in the above-entitled action 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 Supreme 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 order; and it is further,

ORDERED that within 30 days after the date of this decision and order on motion, 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 Supreme 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 decision and order on motion, 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.

DICKERSON, J.P., BELEN, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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