Holtzman v. Holtzman

47 A.D.2d 620, 364 N.Y.S.2d 528, 1975 N.Y. App. Div. LEXIS 8775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1975
• Status: Published

Opinion

Appeal from the order of the Family Court of the State of New York, New York County, entered August 16, 1974, which denied respondent’s motion to dismiss the petition, unanimously dismissed, without costs and without disbursements. Section 1112 of the Family Court Act provides that an appeal “ may be taken as of right from any order of disposition and, in the discretion of the appropriate appellate division, from any other order ” under the Family Court Act. An order of disposition is the equivalent of a “‘final order or judgment’ ” (Matter of Taylor v. Taylor, 23 A D 2d 747). An order denying a motion to dismiss is not an order of disposition within the meaning of the Family Court Act (Matter of Grove v. Gherico, 28 A D 2d 555, 556; Matter of State Welfare Comr. v. Mintz, 28 A D 2d 14; Matter of Hillman v. Minieozzi, 25 A D 2d 866), and accordingly, the appeal does not lie as of right. Since no application for permission to appeal was made, the appeal is not properly before this court (Firestone v. Firestone, 44 A D 2d 671, 672). We note, however, that we have examined the merits of the appeal and had the appeal been properly before this court, we would have affirmed. Concur — Markewich, J. P., Tilzer, Capozzoli and Nunez, JJ.