Appellate Division: Second Judicial Department

M166540

E/mv

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

LEONARD B. AUSTIN

SYLVIA O. HINDS-RADIX, JJ.

2013-09128 In the Matter of Tori S. (Anonymous), appellant. (Docket No. D-20542-12)

DECISION & ORDER ON MOTION

Motion by the appellant to recall and vacate a decision and order on motion of this Court dated October 15, 2013, which dismissed an appeal from an order of the Family Court, Kings County, dated June 4, 2013, on the ground that no appeal lies as of right from a nondispositional order in a proceeding pursuant to Family Court Act article 3, to reinstate the appeal, for this Court to deem the notice of appeal from the order dated June 4, 2013, to be a notice of appeal from an order of the same court dated August 19, 2013, or, for leave to appeal to this Court from the order June 4, 2013, for poor person relief, and for the assignment of 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 the branches of the motion which are to recall and vacate the decision and order on motion of this Court dated October 15, 2013, and to reinstate the appeal are granted, and the decision and order on motion of this Court dated October 15, 2013, is recalled and vacated; and it is further,

ORDERED that the branch of the motion which is for this Court to deem the notice of appeal from the order dated June 4, 2013, to be a notice of appeal from the order dated August 19, 2013, is granted (see CPLR 5512[a]); and it is further,

ORDERED that the branches of the motion which are for poor person relief and for the assignment of counsel are granted; and it is further,

ORDERED that 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 and the respondent. 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 the appellant's counsel, 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 the assigned counsel. Assigned counsel is directed to provide copies of said transcripts to the respondent when counsel serves the appellant's brief upon the respondent; and it is further,

ORDERED that pursuant to Family Court Act § 1120 the following named attorney is assigned as counsel to prosecute the appeal:

Yasmin Daley-Duncan, Esq.

386 Parkside Avenue

Brooklyn, N.Y. 11226

866-565-3441

and it is further,

ORDERED that Ira J. Forman, 26 Court Street, Suite 2403, Brooklyn, N.Y. 11242, former assigned counsel for the appellant is directed to turn over all papers in the matter to the new attorney for the appellant, herein assigned; and it is further,

ORDERED that assigned counsel is directed to serve a copy of this decision and order upon the clerk of the court from which the appeal is taken; and it is further,

ORDERED that the motion is otherwise denied as academic; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appeal in the above-entitled proceeding shall be perfected within 60 days after the receipt by the appellant of the transcripts of the minutes of the proceedings in the Family Court, and the appellant 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 scheduling order; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), within 30 days after the date of this scheduling order, 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 proceedings 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 none of the actions described in (1), (2), (3), or (4) above has been taken within 30 days of the date of this scheduling order, the Clerk of the Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.

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

ENTER:

Aprilanne Agostino

Clerk of the Court

The Case Manager assigned to this case is Mr. Rose. Please contact him at 718-722-6487 with any questions.