Appellate Division: Second Judicial Department

M148523

E/sl

REINALDO E. RIVERA, J.P.

JOHN M. LEVENTHAL

L. PRISCILLA HALL

SHERI S. ROMAN, JJ.

2012-01689, 2012-09176 Mark Musachio, respondent, v Annmarie Musachio, appellant. (Index No. 21672/04)

DECISION & ORDER ON MOTION

Motion by the appellant, inter alia, to stay enforcement of an order of the Supreme Court, Suffolk County, dated July 30, 2012, pending hearing and determination of an appeal therefrom, for poor person relief and the assignment of counsel with respect to that appeal, and to consolidate that appeal with an appeal from a judgment of the same court entered December 29, 2011.

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

ORDERED that the branches of the motion which are for poor person relief and the assignment of counsel with respect to the appeal from the order dated July 30, 2012, are granted, and that 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, held in connection with the order dated July 30, 2012; 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 from the order dated July 30, 2012:

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 appeals 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 appeals are taken; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is denied as unnecessary as the appeals may be consolidated as of right (see 22 NYCRR 670.7[c][1]); and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appeal from the order dated July 30, 2012 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, if 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 from the order dated July 30, 2012; 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 decision and order on motion has been served upon the clerk of the court from which the appeals are taken, the date thereof, and the date by which the transcripts are expected; or

(4) an affidavit or an affirmation withdrawing the appeal from the order dated July 30, 2012; 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 appeals to show cause why the appeal from the order dated July 30, 2012, should or should not be dismissed.

RIVERA, J.P., LEVENTHAL, HALL and ROMAN, 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.