Appellate Division: Second Judicial Department

M160440

E/sl

REINALDO E. RIVERA, J.P.

PETER B. SKELOS

JEFFREY A. COHEN

SYLVIA O. HINDS-RADIX, JJ.

2013-03366 In the Matter of Nikki Paulette Torain, respondent, v David Christopher Latimer, appellant. (Docket Nos. F-13002-05/09E, F-13002-05/09F)

DECISION & ORDER ON MOTION

Appeal by David Christopher Latimer from an order of the Family Court, Westchester County, dated February 13, 2013. By order to show cause dated May 31, 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 proceedings for failure to comply with a scheduling order dated April 10, 2013, issued pursuant to § 670.4(a)(5) of the rules of this Court (22 NYCRR 670.4[a][5]). Motion by the appellant 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 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 September 9, 2013, the appellant shall file in the office of the Clerk of this Court proof that the transcript has been ordered and paid for, and the date by which the transcript is expected; and it is further,

ORDERED that if the appellant fails to comply with the foregoing paragraph, as set forth above, the Court will dismiss the appeal, without further notice.

RIVERA, J.P., SKELOS, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court