Appellate Division: Second Judicial Department

M302674

AFA/

FRANCESCA E. CONNOLLY, J.P.

ROBERT J. MILLER

LILLIAN WAN

LAURENCE L. LOVE, JJ.

2024-03897 In the Matter of Thomas G. (Anonymous), respondent, v Marta B. (Anonymous), appellant. (Docket Nos. V-5992-2019, O-3971-2023, O-4412-2023)

DECISION & ORDER ON MOTION

Appeal from an order of the Family Court, Richmond County, dated May 13, 2024. By order to show cause dated August 23, 2024, 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 proceedings for failure to comply with a scheduling order dated June 5, 2024, issued pursuant to § 670.3(b)(2) of the rules of this Court (22 NYCRR 670.3[b][2]). Motion by the appellant for waiver of costs, fees, and expenses and to assign counsel. Motion by the respondent to dismiss the appeal on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511).

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the motion by the appellant and the papers filed in opposition thereto, and upon the papers filed in support of the motion by the respondent and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion by this Court to dismiss the appeal is denied; and it is further,

ORDERED that the motion by the respondent 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 motion by the appellant for waiver of costs, fees, and expenses 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:

Peter A. Wilner

105 West 86th St., Ste. 129

New York, NY 10024

(917) 733-5932

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., MILLER, WAN and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court