Arsenault v. Arsenault

192 A.D.2d 1120, 596 N.Y.S.2d 628, 1993 N.Y. App. Div. LEXIS 4148

Opinion

—Order unanimously affirmed with costs. Memorandum: The order appealed from is not a final "order of disposition” within the meaning of section 1112 (a) of the Family Court Act. Thus, there was no right to appeal from that order and a stay by Family Court was inappropriate. Inasmuch as the appeal has been heard, and in the interest of procedural regularity, we grant leave to appeal from the order nunc pro tunc (see, Matter of Brenner v Brenner, 57 AD2d 813, 814, lv dismissed 48 NY2d 713). Petitioner objected to the Hearing Examiner’s dismissal of the petition seeking an upward modification of child support with prejudice. Family Court sustained the objections and referred the matter for a full hearing before a new Hearing Examiner (Family Ct Act § 439 [e]). Contrary to respondent’s contention on appeal, the record establishes that the matter had not been submitted to the Hearing Examiner for determination. Thus, in the absence of a showing that respondent would be prejudiced thereby, the court did not abuse its discretion in permitting petitioner to discontinue the proceeding without prejudice (CPLR 3217 [b]; see, Mahaffey v Mahaffey, 52 AD2d 1039; see generally, County of Westchester v Becket Assocs., 102 AD2d 34, 49, affd 66 NY2d 642; Valladares v Valladares, 80 AD2d 244, 258, affd 55 NY2d 388). (Appeal from Order of Erie County Family Court, Townsend, J. — Child Support.) Present —Callahan, J. P., Pine, Fallon, Doerr and Boehm, JJ.