Appellate Division: Second Judicial Department

M216038

E/sl

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

ROBERT J. MILLER

FRANCESCA E. CONNOLLY, JJ.

2016-07130, 2016-07131, 2016-07626 In the Matter of Binong Xu, respondent, v Mark Sullivan, appellant. (Docket Nos. F-843-14, F-4939-14/14B, F-4939-14/14C)

DECISION & ORDER ON MOTION

Motion by the appellant to stay enforcement of an order of the Supreme Court, Kings County (IDV Part), dated June 15, 2016, pending hearing and determination of appeals from the order and a decision of the same court also dated June 15, 2016, for poor person relief, and for the assignment of counsel. Separate motion by the appellant to stay enforcement of an order of the Supreme Court, Kings County (IDV Part), dated July 20, 2016, pending hearing and determination of an appeal from that order, for poor person relief, and for the assignment of counsel.

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

ORDERED that on the Court's own motion, the appeal from the decision is dismissed, without costs or disbursements, on the ground that no appeal lies from a decision (see Schicchi v J.A. Green Constr. Co., 100 AD2d 509); and it is further,

ORDERED that the branches of the motions which are to stay enforcement of the orders dated June 15, 2016, and July 20, 2016, are denied; and it is further,

ORDERED that the branches of the motions which are for poor person relief and for the assignment of counsel are granted, and the appeals from the orders 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 10 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 all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves the appellant's brief upon those parties; and it is further,

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

Kenneth Tuccillo, Esq.

P.O. Box 576

Hastings-on-Hudson, New York 10706

914-439-4843

and it is further,

ORDERED that the assigned counsel shall prosecute the appeals from the orders 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 assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appeals from the orders in the above-entitled proceedings shall be perfected within 60 days after the receipt by the appellant of the transcripts of the minutes of the proceedings in the Supreme 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 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 the Supreme 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 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 transcript is expected; or

(4) an affidavit or an affirmation withdrawing the appeals from the orders; 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 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 from the orders should or should not be dismissed.

RIVERA, J.P., DICKERSON, MILLER and CONNOLLY, 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.