Appellate Division: Second Judicial Department

M167614

E/nl

RUTH C. BALKIN, J.P.

CHERYL E. CHAMBERS

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

2013-09491 In the Matter of Dazahnac S. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 1) In the Matter of Dijore S. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 2) In the Matter of Dazah S. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 3) In the Matter of Dynasty S. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 4) In the Matter of Destiny B. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 5) In the Matter of Desiree S. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 6) In the Matter of Dominque B. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 7) In the Matter of Sha-Meek L. S. (Anonymous). Administration for Children's Services, petitioner- respondent; Derek S. (Anonymous), respondent- appellant, et al., respondent. (Proceeding No. 8) (Docket Nos. N-33172-12, N-33173-12, N-33174-12, N-33175-12, N-33176-12, N-33177-12, N-33178-12, N-33179-12)

DECISION & ORDER ON MOTION

Motion by the respondent-appellant to recall and vacate a decision and order on motion of this Court dated October 28, 2013, which dismissed an appeal from an order of the Family Court, Kings County, dated September 10, 2013, on the ground that no appeal lies from an order entered upon the default of an appealing party, and to reinstate the appeal.

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

ORDERED that the motion is granted, the decision and order on motion dated October 28, 2013, is recalled and vacated, and the appeal is reinstated; appellate review is limited to matters which were the subject of contest in the Family Court, Kings County, in the above-entitled proceedings (see James v Powell, 19 NY2d 249, 256 n 3); and it is further,

ORDERED that pursuant to Family Court Act §§ 1118 and 1120, and upon the certification of Kimberly Mosolf, Esq., dated October 8, 2013, the following named attorney is assigned as counsel to prosecute the appeal:

Brooklyn Defender Services

Family Defense Practice

177 Livingston Street, Suite 700

Brooklyn, N.Y. 11201

347-592-2578

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-respondent, the petitioner-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 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 respondent-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 all of the other parties to the appeal, including the attorney for the children, if any, when counsel serves the respondent-appellant's brief upon those parties; and it is further,

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

ORDERED that the appeal 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, in cases where 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 decision and order on motion, the assigned counsel 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 appeal; 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 appeal is taken, the date thereof, and the date by which the transcripts are expected; or

(4) an affidavit or an affirmation withdrawing the appeal; 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 appeal to show cause why the appeal should or should not be dismissed.

BALKIN, J.P., CHAMBERS, AUSTIN and ROMAN, 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.