Opinion
527013
03-28-2019
In the Matter of KARLA FF., Respondent, v. ROBERT FF., Appellant.
Kalter, Kaplan, Zeiger & Forman, Woodbourne (Terry S. Forman of counsel), for appellant. Strauss & Kallus, PLLC, Goshen (Barbara J. Strauss of counsel), for respondent.
Kalter, Kaplan, Zeiger & Forman, Woodbourne (Terry S. Forman of counsel), for appellant.
Strauss & Kallus, PLLC, Goshen (Barbara J. Strauss of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.Petitioner (hereinafter the wife) and respondent (hereinafter the husband) are married and have a divorce action pending. As relevant here, in July 2017, the wife filed this family offense petition and requested an order of protection. The husband thereafter filed a motion to dismiss the petition and requested that he be awarded counsel fees, which the wife opposed. Family Court denied the motion and the husband now appeals.
Pursuant to the Family Ct Act, with exceptions not relevant here, a party may only appeal as of right from a final order (see Family Ct Act § 1112[a] ; Matter of Kristie GG. v. Sean GG. , 168 A.D.3d 25, 27 n. 1, 91 N.Y.S.3d 292 [2018] ; Matter of Kayson R. [Christina S.] , 166 A.D.3d 1346, 1346 n. 2, 88 N.Y.S.3d 626 [2018] ). As the denial of the husband's motion to dismiss is an intermediate order, an appeal does not lie as of right; accordingly, his appeal must be dismissed (see Family Ct Act § 1112[a] ; Matter of Timothy GG. [Meriah GG.] , 163 A.D.3d 1065, 1067, 81 N.Y.S.3d 311 [2018], lv denied 32 N.Y.3d 908, 89 N.Y.S.3d 115, 113 N.E.3d 949 [2018] ; Matter of Justyce HH. [Shannon HH.] , 151 A.D.3d 1216, 1216, 53 N.Y.S.3d 573 [2017] ). We note that, while this appeal was pending, a nonjury trial was held resulting in a January 17, 2018 order granting the wife's petition. An appeal from this dispositional order would bring up for review the denial of this motion to dismiss (see Matter of Kristie GG. v. Sean GG. , 168 A.D.3d at 27 n. 1, 91 N.Y.S.3d 292 ).
Garry, P.J., Lynch, Clark and Devine, JJ., concur.ORDERED that the appeal is dismissed, without costs.