Appellate Division: Second Judicial Department

M153169

E/sl

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

JOHN M. LEVENTHAL

ROBERT J. MILLER, JJ.

2012-10447 In the Matter of Tiana M. Rapp, respondent, v Kelly Rapp Hesselbarth, appellant. (Docket No. F-18936-11)

DECISION & ORDER ON MOTION

Appeal by Kelly Rapp Hesselbarth from an order of the Family Court, Suffolk County, dated August 7, 2012. By order to show cause dated January 24, 2013, 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 proceeding for failure to comply with a scheduling order dated December 5, 2012, issued pursuant to § 670.4(a)(2) of the rules of this Court (22 NYCRR 670.4[a][2]). 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 papers filed in support of 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 branch of the appellant's motion which is for leave to prosecute the appeal on the original papers is denied as unnecessary (see Family Ct Act § 1116), and 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 (22 NYCRR 670.9[d][1][ii]; Family Ct Act § 1116); and it is further,

ORDERED that the branches of the appellant's motion which are to waive the filing fee, for free transcripts, and for the assignment of counsel are denied; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), on or before April 18, 2013, the appellant 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 the Family Court proceeding to be transcribed for the appeal; or

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

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

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

ORDERED that if the appellant fails to file the affidavit or affirmation as set forth above on or before April 18, 2013, the Court will dismiss the appeal, without further notice.

ENG, P.J., RIVERA, LEVENTHAL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court