Cutroneo v. Cutroneo

• Decision Date: 13 May 2015
• Docket Number: 2014-03860, 2014-04432, 2014-08350
• Parties: Garynn R. CUTRONEO, respondent, v. Kenneth R. CUTRONEO, appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 754

9 N.Y.S.3d 148

2015 N.Y. Slip Op. 04083

Garynn R. CUTRONEO, respondent

v.Kenneth R. CUTRONEO, appellant.

2014-03860, 2014-04432, 2014-08350

Supreme Court, Appellate Division, Second Department, New York.

May 13, 2015.

Lydia S. Antoncic, New Rochelle, N.Y., for appellant.

Bodnar & Milone LLP, White Plains, N.Y. (Elizabeth E. Erickson of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.

Opinion

Appeals from (1) an order of the Supreme Court, Westchester County (Francis A. Nicolai, J.), dated April 9, 2014, (2) an order of commitment of that court dated April 17, 2014, and (3) a money judgment of that court entered April 29, 2014. The order dated April 9, 2014, after a hearing, found the husband in civil contempt of court for failure to pay child support and maintenance in accordance with the terms of the parties' judgment of divorce and directed that he be incarcerated unless he purged himself of his contempt. The order of commitment, upon the order dated April 9, 2014, and the husband's failure to purge his contempt, directed that he be committed to the custody of the Westchester County Correctional Facility for a period of six months unless he purged himself of his contempt. The money judgment, upon the order dated April 9, 2014, awarded the wife a sum representing the husband's arrears for a certain period. The husband's assigned counsel has submitted a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 in which she moves for leave to withdraw as counsel.

ORDERED that the motion of Lydia S. Antoncic for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to new counsel assigned herein; and it is further,

ORDERED that Marc Greenberg, Esq., 45 Knollwood Road, Suite # 502, Elmsford, N.Y., 10523, is assigned as counsel to perfect the appeals; and it is further,

ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion and the respondent shall serve and file her brief within 30 days after the brief on behalf of the appellant is served and filed. By prior order on certification of this Court, the appellant was granted leave to prosecute the appeals as a poor person, with the appeals to be heard on the original papers (including a certified transcript of the proceedings) and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

The brief submitted by the appellant's counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 is deficient because counsel failed to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeals (see Matter of Liam Q. [Elizabeth P.], 123 A.D.3d 722, 998 N.Y.S.2d 418 ; Matter of Griffin v. Moore–James, 95 A.D.3d 1013, 1014, 945 N.Y.S.2d 95 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 931 N.Y.S.2d 676 ). Since the brief does not demonstrate that assigned counsel fulfilled her obligation to act “as an active advocate on behalf of [her] client, or that [s]he diligently examined the record” (Matter of Kenneth S....