Appellate Division: Second Judicial Department

M240932

E/ct

RANDALL T. ENG, P.J.

LEONARD B. AUSTIN

SHERI S. ROMAN

FRANCESCA E. CONNOLLY, JJ.

2017-10881 Jeanette Sternberg-Kennedy, respondent, v Douglas Kennedy, appellant. (Index No. 52341/14)

DECISION & ORDER ON MOTION

Motion by the appellant to stay enforcement of stated portions of a judgment of the Supreme Court, Kings County (IDV Part), dated September 15, 2017, pending hearing and determination of an appeal from the judgment, for leave to prosecute the appeal as a poor person, 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 the branch of the motion which is to stay enforcement of stated portions of the judgment is granted, and enforcement of so much of the judgment as granted the respondent permission to relocate with the subject children within 30 miles of New York City is stayed, pending hearing and determination of the appeal; and it is further,

ORDERED that the branches of the motion which are for leave to prosecute the appeal as a poor person, and for the assignment of counsel are granted to the extent that poor person relief and the assignment of counsel are granted with respect to the appeal from so much of the judgment as concerns issues of custody and visitation, and those branches of the motion are otherwise denied; and it is further,

ORDERED that pursuant to Family Court Act § 1120 the following named attorney is assigned as counsel to prosecute the appeal with respect to issues of custody and visitation:

Richard L. Herzfeld, Esq.

112 Madison Avenue, 8th Floor

New York, NY 10016

212-818-9019

and it is further,

ORDERED that assigned counsel may prosecute the appeal with respect to issues of custody and visitation on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the parties. Assigned counsel is directed to file nine copies of the appellant's brief and to serve one copy on the other parties; parties responding to assigned counsel's brief are directed to file nine copies of their respective briefs and to serve one copy on the other parties (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), with respect to issues of custody and visitation; 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 assigned counsel, 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 assigned counsel. Assigned counsel is directed to provide copies of said transcripts tocounsel for the respondent and the attorney for the children, if any, when assigned counsel serves a brief upon those parties; and it is further,

ORDERED that the appeal shall be perfected 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 Supreme Court, Kings County (IDV Part); and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), assigned counsel shall perfect the appeal with respect to issues of custody and visitation in the above-entitled action within 60 days after the receipt of the transcripts of the minutes of the proceedings in the Supreme Court, and the appellant pro se shall perfect the appeal with respect to issues other than custody and visitation in the above-entitled action within 60 days after the receipt of the transcripts of the minutes of the proceedings in the Supreme Court; assigned counsel and the appellant pro se 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, 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 with respect to issues of custody and visitation; or

(2) if there are such minutes, an affidavit or affirmation stating 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 of this Court has been served upon the clerk of the court from which the appeal is taken, the date thereof, and the date by which the transcript is expected; or

(4) an affidavit or an affirmation withdrawing the appeal with respect to issues of custody and visitation; and it is further,

ORDERED that if assigned counsel has not taken any of the actions described in (1), (2), (3), or (4) above 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 show cause why the appeal with respect to issues of custody and visitation should or should not be dismissed; 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 pro se 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 with respect to issues other than custody and visitation; or

(2) if there are such minutes, an affidavit or affirmation stating 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 the transcript with respect to issues other than custody and visitation 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 with respect to issues other than custody and visitation; and it is further,

ORDERED that if the appellant pro se has not taken any of the actions described in (1), (2), (3), or (4) above 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 show cause why the appeal with respect to issues other than custody and visitation should or should not be dismissed.

ENG, P.J., AUSTIN, ROMAN 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.