Appellate Division: Second Judicial Department

M255293

E/mmMARK C. DILLON, J.P.

SHERI S. ROMAN

ROBERT J. MILLER

COLLEEN D. DUFFY, JJ.

2018-05980 In the Matter of Catherine Berry, respondent, v Ronald D. Smith, appellant. (Docket No. O-1670-17)

DECISION & ORDER ON MOTION

Appeal by Ronald D. Smith from an order of the Family Court, Kings County, dated April 20, 2018. By order to show cause dated July 17, 2018, 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 25, 2018, issued pursuant to § 670.4(a)(5) of the rules of this Court (22 NYCRR 670.4[a][5]).

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

ORDERED that the motion to dismiss the appeal is denied; 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 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 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 it has been ordered and paid for, the date thereof, and the date by which the transcript is expected; or

(4) if the appellant was indigent and could not 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; or

(5) 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.

DILLON, J.P., ROMAN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court