Appellate Division: Second Judicial Department

M327900

E/afa

RANDALL T. ENG, P.J.

JOHN M. LEVENTHAL

SYLVIA O. HINDS-RADIX

FRANCESCA E. CONNOLLY, JJ.

2016-08822, 2016-08823, 2016-08824, 2016-09081 Eluzer Ausch, respondent, v Etty Ausch, appellant. (Index No. 55379/15)

DECISION & ORDER ON MOTION

Motion by the appellant to stay enforcement of four orders of the Supreme Court, Kings County, dated June 30, 2016, July 13, 2016, July 27, 2016, and August 15, 2016, respectively, and to direct the immediate return of the subject children to her, pending hearing and determination of appeals from the orders, to relieve the attorney for the children and appoint a new attorney for the children, and for poor person relief.

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 appeals from the orders dated June 30, 2016, July 13, 2016, and July 27, 2016, are dismissed, without costs or disbursements, on the ground that no appeals lie as of right from orders that are not the result of a motion made on notice (see CPLR 5701), and leave to appeal has not been granted; and it is further,

ORDERED that the branches of the motion which are to stay enforcement of the orders, to direct the immediate return of the subject children to the appellant, and to relieve the attorney for the children and appoint a new attorney for the children are denied; and it is further

ORDERED that the branch of the motion which is for poor person relief is granted with respect to the appeal from the order dated August 15, 2016, and otherwise denied as academic; and it is further,

ORDERED that the appeal from the order dated August 15, 2016, 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; 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 any proceedings held in connection with the order dated August 15, 2016, 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 Supreme Court, and the clerk of the Supreme Court shall furnish one of such certified transcripts to the appellant's counsel, Beth E. Goldman, New York Legal Assistance Group, 7 Hanover Square, 18th Floor, New York, New York 10004, 212-613-6574, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Supreme Court and one transcript shall be delivered to the appellant's counsel. The appellant's 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 appellant's brief upon those parties; and it is further,

ORDERED that the appellant's counsel shall prosecute the appeal 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 the appellant's counsel is directed to serve a copy of this decision and order on motion upon the clerk of the Supreme Court, Kings County; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appeal from the order dated August 15, 2016, in the above-entitled action 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 decision and order on motion; 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 appellant's 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 from the order dated August 15, 2016; 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 Supreme Court, Kings County, the date thereof and the date by which the transcript is expected; or

(4) an affidavit or an affirmation withdrawing the appeal from the order dated August 15, 2016; 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 the parties to show cause why the appeal from the order dated August 15, 2016, should or should not be dismissed.

ENG, P.J., LEVENTHAL, HINDS-RADIX and CONNOLLY, 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. .