Appellate Division: Second Judicial Department

M296341

AFA/

FRANCESCA E. CONNOLLY, J.P.

PAUL WOOTEN

DEBORAH A. DOWLING

LAURENCE L. LOVE, JJ.

2024-00807, 2024-01007 In the Matter of Malka Schmerler, respondent, v Simon Schmerler, appellant. (Docket No. O-16940-2018)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated May 3, 2024, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Appeals from two orders of the Family Court, Kings County, dated January 2, 2024, and December 11, 2023, respectively. Motion by the appellant pro se for leave to prosecute the appeals as a poor person and for the assignment of counsel.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that on the Court's own motion, the appeal from the order dated December 11, 2023, is dismissed, without costs or disbursements, on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the branch of the motion which is for leave to prosecute the appeal from the order dated December 11, 2023, as a poor person and for the assignment of counsel is denied as academic; and it is further,

ORDERED that the branch of the motion which is for leave to prosecute the appeal from the order dated January 2, 2024, as a poor person and for the assignment of counsel is granted; and it is further,

ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the parties who are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on each other (22 NYCRR 670.9[a], 1250.5[e][1], 1250.9[e]; 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; 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 appellant's counsel, 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 assigned counsel. Assigned counsel is directed to provide copies of said transcripts to all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves the appellant's brief upon those parties; and it is further,

ORDERED that pursuant to Family Court Act § 1120 the following named attorney is assigned as counsel to prosecute the appeal:

Gail Jacobs

10 St. George Road

Great Neck, NY 11021

516-773-3107

and it is further,

ORDERED that the assigned counsel shall prosecute the appeal expeditiously in accordance with any scheduling order or orders issued pursuant to 670.3(b) of the rules of this Court (22 NYCRR 670.3[b]); 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 court from which the appeal is taken.

CONNOLLY, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court