Appellate Division: Second Judicial Department

M220978

E/sl

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN

JOHN M. LEVENTHAL, JJ.

2016-11273 In the Matter of Jean Brutman, appellant, v Jerome Cunningham, Jr., respondent. (Docket Nos. O-1134-16, V-497-16/16A, V-497-16/16B)

DECISION & ORDER ON MOTION

Appeal by Jean Brutman from an order of the Family Court, Rockland County, dated August 30, 2016.

On the Court's own motion, it is

ORDERED that the appeal from so much of the order as granted the branch of the appellant's motion which was to declare that the Rockland County Family Court had jurisdiction over all custody and visitation issues, and as denied the branch of the respondent's cross motion which was to change venue to the Supreme Court, Queens County, is dismissed, without costs or disbursements, on the ground that the appellant is not aggrieved by those portions of the order (see CPLR 5511); and it is further,

ORDERED that the appeal from so much of the order as denied the branch of the appellant's motion which was to modify custody is dismissed, without costs or disbursements, as no appeal lies as of right from a nondispositional order in a proceeding pursuant to Family Court Act article 6, part 3 (see Family Ct Act § 1112), and leave to appeal has not been granted; and it is further,

ORDERED that the appeal from so much of the order as, in effect, referred for a hearing the determination of the branch of the respondent's cross motion which was to modify custody is dismissed, without costs or disbursements, as that portion of the order is not appealable as of right (see Bagdy v Progresso Foods Corp., 86 AD2d 589), and leave to appeal has not been granted; 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 so mush of the order as granted the respondent's cross motion to dismiss the Family Offense petition and vacate the temporary order of protection under Family Court Docket No. O-1134-16 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) if the appellant is indigent and cannot afford to obtain the minutes or perfect the appeal, a motion in this Court for leave to prosecute the appeal as a poor person and for the assignment of counsel, pursuant to the requirements of CPLR 1101. Such a motion must be supported by an affidavit from the appellant, stating either that he or she qualified for assigned counsel upon application to the Family Court and that his or her financial status has not changed since that time, or that he or she had retained counsel or appeared pro se in the Family Court, and listing his or her assets and income; or

(5) an affidavit or an affirmation withdrawing the appeal; and it is further,

ORDERED that if none of the actions described in (1), (2), (3), (4), or (5) 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.

ENG, P.J., RIVERA, DILLON, BALKIN and LEVENTHAL, 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.