Opinion
April 14, 1993
Appeal from the Erie County Family Court, Townsend, J.
Present — Callahan, J.P., Pine, Fallon, Doerr and Boehm, JJ.
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 A.D.2d 813, 814, lv dismissed 48 N.Y.2d 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 A.D.2d 1039; see generally, County of Westchester v Becket Assocs., 102 A.D.2d 34, 49, affd 66 N.Y.2d 642; Valladares v Valladares, 80 A.D.2d 244, 258, affd 55 N.Y.2d 388).