Appellate Division: Second Judicial Department

M242518

E/ct

MARK C. DILLON, J.P.

LEONARD B. AUSTIN

SANDRA L. SGROI

BETSY BARROS, JJ.

2017-06691 In the Matter of Mark Menghi, respondent, v Adrienne Trotta-Menghi, appellant. (Docket Nos. V-14892-16/16A, V-14891-16/16A)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Family Court, Suffolk County, dated February 16, 2017, inter alia, as untimely taken and on the ground that no appeal lies from an order entered upon the default of an appealing party, or, in the alternative, in effect, to recall and vacate an order on certification of this Court dated August 15, 2017, which granted poor person relief and assigned counsel for the appellant and for an expedited briefing schedule. Cross motion by the appellant for leave to file a late notice of appeal if it is determined that the notice of appeal was untimely.

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

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that no appeal lies from an order entered upon the default of an appealing party is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is for an expedited briefing schedule is granted to the extent that the matter will be actively managed (see 22 NYCRR 670.4[a]); and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED that the cross motion is denied as academic; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appeal in the above-entitled proceeding shall be perfected either within 60 days after the receipt by the assigned counsel of the transcripts of the minutes of the proceedings in the Family Court, and the assigned counsel 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 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 any Family Court proceeding to be transcribed for the appeal; or

(2) if there are such minutes, an affidavit or affirmation that the transcripts have been received, and indicating the date received; or

(3) if the transcripts have not been received, an affidavit or affirmation stating that the order on certification of this Court dated August 15, 2017, has been served upon the clerk of the court from which the appeal is taken, the date thereof, and the date by which the transcripts are expected; or

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

ORDERED that if none of the above actions described in (1), (2), (3), or (4) above, has been taken within 30 days of the date of this scheduling order, the Clerk of this Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.

DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court