Zimmer v. Peno

194 A.D.2d 928, 598 N.Y.S.2d 1013, 1993 N.Y. App. Div. LEXIS 6305

Opinion

Mercure, J.

Appeal from an order of the Family Court of Warren County (Austin, J.), entered August 16, 1991, which, in a proceeding pursuant to Family Court Act article 6, inter alia, denied petitioner’s request to withdraw her application for modification of respondent’s visitation rights with the parties’ child.

The order sought to be reviewed on this appeal, inter alia, denied petitioner’s request to withdraw her petition, awarded respondent custody of the parties’ child "without prejudice to the rights of petitioner to have a full hearing herein” and transferred the proceeding to the Family Court of Saratoga County. As such, it is not a final order appealable to this Court as of right (see, Family Ct Act § 1112; Matter of Harley v Harley, 129 AD2d 843, 844; Matter of Young v Morse, 92 AD2d 706) and, because petitioner did not seek permission to appeal, the matter is not properly before us (see, Matter of Harley v Harley, supra). In the procedural posture of this case, we decline to treat the notice of appeal as a request for permission to appeal. Even if this appeal were properly before us, we would affirm the order of Family Court, which is amply supported by the record.

Weiss, P. J., Levine and Mahoney, JJ., concur. Ordered that the appeal is dismissed, without costs.