Appellate Division: Second Judicial Department

M164771

E/sl

WILLIAM F. MASTRO, J.P.

PLUMMER E. LOTT

LEONARD B. AUSTIN

SYLVIA O. HINDS-RADIX, JJ.

2013-06876 In the Matter of Jennifer Elkins, etc., respondent, v Aaron Mizrahi, appellant. (Matter No. 1) In the Matter of Aaron Mizrahi, appellant, v Jennifer Elkins, etc., respondent. (Matter No. 2) (Docket Nos. F-7033-08/12I, F-7033-08/12J)

DECISION & ORDER ON MOTION

Appeal by Aaron Mizrahi from an order of the Family Court, Nassau County, dated June 11, 2013. By order to show cause dated October 2, 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 July 30 2013, issued pursuant to § 670.4(a)(2) of the rules of this Court (22 NYCRR 670.4[a][2]). Motion by 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 motion and the papers filed in opposition thereto, it is

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the branch of the 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 December 4, 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 on or before December 4, 2013, as set forth above, the Court will dismiss the appeal, without further notice.

MASTRO, J.P., LOTT, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court