Appellate Division: Second Judicial Department

M148561

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2012-07104 In the Matter of Jill Regina Hartzog, respondent, v Derek Donald Callender, appellant. (Docket No. F-29533-03/10E)

ORDER TO SHOW CAUSE

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated December 11, 2012, which dismissed the appeal in the above-entitled case is recalled and vacated, and the appeal is reinstated; and it is further,

ORDERED that the order to show cause dated November 19, 2012, in the above-entitled case is recalled and vacated, and the following order to show cause is substituted therefor:

Appeal by Derek Donald Callender from an order of the Family Court, Kings County, dated June 14, 2012. By scheduling order dated August 14, 2012, as amended, the appellant was directed to file one of the following in the office of the Clerk of the Court, within 30 days after the date of the scheduling order:

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

(2) if there were such minutes, an affidavit or affirmation that the transcript was received, and indicating the date that it was received; or

(3) if the transcript was not received, an affidavit or affirmation stating that it was ordered and paid for, the date thereof and the date by which the transcript was expected; or

(4) if the appellant was indigent and could not afford to obtain the minutes or perfect the appeal, a motion in this court for leave to prosecute the appeal as a poor person and for the assignment of counsel, pursuant to the requirements of CPLR 1101; or

(5) an affidavit or an affirmation withdrawing the appeal.

The appellant has failed to comply with the scheduling order. Pursuant to § 670.4(a)(5) of the rules of this Court (22 NYCRR 670.4[a][5]), it is

ORDERED that the parties or their attorneys are 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 proceeding for failure to comply with the scheduling order dated August 14, 2012, by each filing an affirmation or affidavit on that issue in the office of the Clerk of this Court and serving one copy of the same on each other on or before January 11, 2013; and it is further,

ORDERED that the Clerk of this Court, or her designee, is directed to serve a copy of this order to show cause upon the parties or their attorneys by regular mail.

ENG, P.J., MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court