Appellate Division: Second Judicial Department

M156133

J/sl

DANIEL D. ANGIOLILLO, J.P.

THOMAS A. DICKERSON

LEONARD B. AUSTIN

SYLVIA HINDS-RADIX, JJ.

2012-09604, 2012-09605 In the Matter of Larry B. (Anonymous), appellant; State of New York, respondent. (Index No. 7572/09)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated November 29, 2012, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant's assigned counsel on appeals from an order of the Supreme Court, Kings County, dated October 5, 2012, and a decision of the same court also dated October 5, 2012, to be relieved and for the assignment of new counsel.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that on the Court's own motion, the appeal from the decision (Appellate Division Docket No. 2012-09605) is dismissed, without costs or disbursements, on the ground that no appeal lies from a decision (see Schicchi v J.A. Green Constr. Co., 100 AD2d 509); and it is further,

ORDERED that the motion is granted to the extent that assigned counsel is relieved, and the appellant is granted poor person relief and the assignment of counsel with respect to the appeal from the order, and the motion is otherwise denied as academic; and it is further,

ORDERED that the appeal from the order will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; 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 pursuant to statute (CPLR 1102[b]) the stenographer of the trial court is directed promptly to make, certify and file two transcripts of the proceedings, if any, of the trial or hearing and shall deliver one copy to the appellant's attorney and file the other with the Clerk of this Court; Assigned counsel is directed to turn over said transcripts to the respondent when counsel serves the appellant's brief upon the respondent; and it is further,

ORDERED that Mental Hygiene Legal Services, 170 Old Country Road, Suite 500, Mineola, N.Y. 11501, is directed to turn over all papers in the action to the new counsel herein assigned; and it is further,

ORDERED that pursuant to Mental Hygiene Law § 10.13(c) and County Law article 18-B, the following named attorney is assigned as counsel to prosecute the appeal from the order:

Steven A. Feldman, Esq.

626 RXR Plaza

West Tower, 6th Floor

Uniondale, N.Y. 11556

516-522-2828

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 Supreme Court, Kings County.

ANGIOLILLO, J.P., DICKERSON, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court