Zavistowski v. Zavistowski

54 A.D.2d 986, 389 N.Y.S.2d 21, 1976 N.Y. App. Div. LEXIS 14939

Opinion

In a support proceeding pursuant to article 4 of the Family Court Act, the appeal is from an order of the Family Court, Westchester County, dated April 16, 1976, which, inter alia, denied appellant’s motion to dismiss the petition for lack of subject matter jurisdiction and granted the petitioner’s cross motion to the extent, inter alia, of permitting her to support the petition by deposition taken of her in Poland. Appeal dismissed, without costs and 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 (see Matter of Taylor v Taylor, 23 AD2d 747). An order denying a motion to dismiss a support petition is not an order of disposition within the meaning of that section (Matter of Holtzman v Holtzman, 47 AD2d 620; Matter of Grove v Cherico, 28 AD2d 555, 556) and, accordingly, this appeal does not lie as of right. Where no application for permission to appeal was made, the appeal is not properly before this court (s.ee Firestone v Firestone, 44 AD2d 671). We note, however, that we have examined the merits of the appeal and that, had the appeal been properly before us, we would have affirmed the order sought to be reviewed. Margett, Acting P. J., Rabin, Hawkins and Mollen, JJ., concur.