Appellate Division: Second Judicial Department

M165753

E/sl

RANDALL T. ENG, P.J.

THOMAS A. DICKERSON

CHERYL E. CHAMBERS

L. PRISCILLA HALL, JJ.

2013-08222, 2013-08223, 2012-08224 In the Matter of Alton D. Inabinett, Jr., respondent, v Cherice A. Kelly, appellant. (Docket Nos. V-5139-12, V-15334-12)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated October 22, 2013, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by Cherice A. Kelly for leave to prosecute appeals from three orders of the Family Court, Queens County, all dated July 5, 2013, as a poor person and for the assignment of counsel.

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

ORDERED that on the Court's own motion, the appeal from the temporary order of protection pending under Appellate Division Docket No. 2013-08223, is dismissed, without costs or disbursements, on the ground that it has been rendered academic; and it is further,

ORDERED that the motion is granted with respect to the appeals pending under Appellate Division Docket Nos. 2013-08222 and 2012-08224 and otherwise denied as academic; and it is further,

ORDERED that the appeals pending under Appellate Division Docket Nos. 2013-08222 and 2012-08224 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 child, 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 stenographer(s) and/or the transcription service(s) is/are required promptly to make and certify two transcripts of the proceedings, if any, except for those minutes previously transcribed and certified (22 NYCRR 671.9); in the case of stenographers, both transcripts shall be filed with the clerk of the Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to counsel for the appellant, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to counsel for the appellant. Counsel for the appellant is directed to provide copies of said transcripts to all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves a brief upon those parties; and it is further,

ORDERED that the assigned counsel shall prosecute the appeals pending under Appellate Division Docket Nos. 2013-08222 and 2012-08224 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 pursuant to Family Court Act § 1120 the following named attorney is assigned as counsel to prosecute the appeals orders under Appellate Division Docket Nos. 2013-08222 and 2012-08224:

Jeffrey C. Bluth, Esq.

415 Albemarle Road, Apt. 6k

Brooklyn, N.Y. 11218

718-435-5357

and it is further,

ORDERED that the appeals pending under Appellate Division Docket Nos. 2013-08222 and 2012-08224 in the above-entitled proceedings 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 Family 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 decision and order on motion; and it is further,

ORDERED that within 30 days after the date of this scheduling order, the assigned counsel for 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 any Family Court proceeding to be transcribed for the appeals; 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 appeals orders under Appellate Division Docket Nos. 2013-08222 and 2012-08224; 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 appeals pending under Appellate Division Docket Nos. 2013-08222 and 2012-08224 should or should not be dismissed.

ENG, P.J., DICKERSON, CHAMBERS and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

The Case Manager assigned to this case is Ms. Vazquez. Please contact her at 718-722-6488 with any questions.