Appellate Division: Second Judicial Department

M242751

E/ct

JOHN M. LEVENTHAL, J.P.

SYLVIA O. HINDS-RADIX

HECTOR D. LASALLE

VALERIE BRATHWAITE NELSON, JJ.

2017-09822, 2017-09823 In the Matter of Eliyahu C. Poltorak, respondent, v Bella Poltorak, appellant. (Docket Nos. V-12527-17, V-12526-17, V-12525-17)

DECISION & ORDER ON MOTION

2017-10982

In the Matter of Bella Poltorak, appellant,

v Eliyahu C. Poltorak, respondent.

(Docket No. V-26509)

Motion by Bella Poltorak, inter alia, for leave to appeal to this Court from an order of the Family Court, Kings County, dated October 11, 2017, to stay enforcement of that order pending hearing and determination of the appeal, for leave to prosecute that appeal as a poor person, to hold Eliyahu C. Poltorak in contempt pursuant to Judiciary Law §§ 750 and 753 for his willful refusal to obey, and for his continued disobedience of, a decision and order on motion of this Court dated September 25, 2017, which stayed enforcement of an order of the Family Court, Kings County, dated September 19, 2017, as well as stated portions of an order of the Family Court, Kings County, dated September 20, 2017, pending hearing and determination of appeals from those orders or issuance of a dispositional order in the above-entitled proceedings, whichever occurred first, and to consolidate the appeals from the order dated October 11, 2017, with the appeals from the orders dated September 19, 2017, and September 20, 2017. Separate motion by Eliyahu C. Poltorak for leave to cross-appeal to this Court from the order dated September 20, 2017.

Upon the papers filed in support of motion by Bella Poltorak and the papers filed in opposition and in relation thereto, and upon the papers filed in support of the motion by Eliyahu C. Poltorak and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the motion by Bella Poltorak which is for leave to appeal from the order dated October 11, 2017, is denied as unnecessary as that order is appealable as of right (see Family Ct Act § 1112); and it is further,

ORDERED that the branches of the motion which is for leave to prosecute the appeal from the order dated October 11, 2017, as poor person relief and to consolidate the appeals are granted; 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 with respect to the appeal from the order dated October 11, 2017, if any, 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 Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to the counsel for Bella Poltorak, New York Legal Assistance Group, 7 Hanover Square, 18th Floor, New York, NY 10004, (212)613-5086, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to the counsel for Bella Poltorak. Counsel is directed to provide copies of said transcripts to all of the other parties when counsel serves a brief upon those parties; and it is further,

ORDERED that the counsel for Bella Poltorak is directed to serve a copy of this order upon the clerk of Family Court, Kings County; and it is further,

ORDERED that the branch of the motion by Bella Poltorak which is to hold Eliyahu C. Poltorak in contempt pursuant to Judiciary Law §§ 750 and 753 is held in abeyance and the matter is referred to the Family Court, Kings County, to hear and report on (1) whether Eliyahu C. Poltorak willfully violated the decision and order on motion of this Court dated September 25, 2017, (2) whether Eliyahu C. Poltorak knowingly disobeyed the decision and order on motion of this Court dated September 25, 2017, and, in so doing, defeated, impaired, or prejudiced the rights of Bella Poltorak, and (3) whether Eliyahu C. Poltorak has a defense to a finding of contempt or any evidence bearing on sanctions, in the event a finding of contempt is warranted; the Family Court, Kings County, shall file its report with all convenient speed; and it is further,

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

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), Bella Poltorak shall perfect the appeal from the order dated October 11, 2017, within 60 days after the receipt of the transcripts of the minutes of the proceedings in the Family Court, and 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, Bella Poltorak 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 from the order dated October 11, 2017; 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 this decision and order on motion has been served upon the clerk of the Family 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 October 11, 2017; and it is further,

ORDERED that if Bella Poltorak takes none of the actions described in (1), (2), (3), or (4) above within 30 days of the date of this scheduling order, the Clerk of the Court shall issue an order to all parties to show cause why the appeal from the order dated October 11, 2017, should or should not be dismissed; and it is further,

ORDERED that the motion by Eliyahu C. Poltorak is granted; and it is further,

ORDERED that pursuant to § 670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), Eliyahu C. Poltorak shall perfect the cross appeal from the order dated September 20, 2017, within 60 days after the receipt of the transcripts of the minutes of the proceedings in the Family Court, and 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, Eliyahu C. Poltorak 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 cross appeal from the order dated September 20, 2017; or

(2) if there are such minutes, an affidavit or affirmation that stating 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 has been ordered and paid for, the date thereof, and the date by which the transcript is expected; or

(4) if he is indigent and cannot afford to obtain the minutes or perfect the cross appeal, a motion in this Court for leave to prosecute the cross 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 Eliyahu C. Poltorak, stating either that he qualified for assigned counsel upon application to the Family Court and that his financial status has not changed since that time, or that he had retained counsel or appeared pro se in the Family Court, and listing his assets and income; or

(5) an affidavit or an affirmation withdrawing the cross appeal from the order dated September 20, 2017; and it is further,

ORDERED that if Eliyahu C. Poltorak takes none of the actions described in (1), (2), (3), (4), or (5) above within 30 days of the date of this scheduling order, the Clerk of the Court shall issue an order to all parties to show cause why the cross appeal from the order dated September 20, 2017, should or should not be dismissed.

LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court