Appellate Division: Second Judicial Department

M236069

E/afa

L. PRISCILLA HALL, J.P.

LEONARD B. AUSTIN

SANDRA L. SGROI

LINDA CHRISTOPHER, JJ.

2017-04820 In the Matter of Victor M. Franco, appellant, v Alisa M. Franco, respondent. (Docket No. F-6954-09/16H)

DECISION & ORDER ON MOTION

Appeal by Victor M. Franco from an order of the Family Court, Suffolk County, dated March 21, 2017. By order to show cause dated June 29, 2017, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal in the above-entitled proceeding for failure to comply with a scheduling order dated May 15, 2017, issued pursuant to § 670.4(a)(2) of the rules of this Court (22 NYCRR 670.4[a][2]). Motion by the appellant pro se for leave to prosecute the appeal as a poor person and for the assignment of counsel.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the motion and the papers filed in opposition thereto, it is it is

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the branch of the motion which is for leave to prosecute the appeal on the original papers is denied as unnecessary (see Family Ct Act § 1116), and 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, the respondent, and the attorney for the child, 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 branches of the motion which are to waive the filing fee, for free transcripts, and for the assignment of counsel are denied; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appellant's time to comply with the scheduling order dated May 15, 2017, is extended and, within 30 days of the date of this decision and order on motion, 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 proceeding 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 the appellant fails to file the affidavit or affirmation within 30 days of the date of this decision and order on motion, as set forth above, the Court will dismiss the appeal, without further notice.

HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, 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.