Opinion
January 30, 1995
Appeal from the Family Court, Queens County (Fitzmaurice, J.).
Ordered that the order is affirmed, without costs or disbursements.
We find unpersuasive the father's contention that the Family Court erred by dismissing the present custody proceeding upon learning that the parties had been simultaneously litigating a matrimonial action in the Supreme Court which, only two weeks earlier, had culminated in a determination of the custody and visitation issues. The record before us contains no evidence regarding whether the matrimonial action was pending when this custody proceeding was commenced. Hence, we are unable to determine whether the Family Court did not have jurisdiction to entertain this proceeding (see, Matter of Poliandro v Poliandro, 119 A.D.2d 577; Lapiana v. Lapiana, 67 A.D.2d 966; cf., Matter of Lacarrubba v. Lacarrubba, 198 A.D.2d 354; Matter of Rubenstein v. Yosef, 198 A.D.2d 359; Matter of James P.W. v. Eileen M.W., 136 A.D.2d 549; Matter of Wolinsky v. Wolinsky, 133 A.D.2d 768; Matter of Roy v. Roy, 109 A.D.2d 150). However, even if we assume that the Family Court did have jurisdiction, the record overwhelmingly supports its discretionary determination to decline to exercise its jurisdiction in this case (see generally, Matter of Roy v. Roy, supra, at 153). Indeed, the Family Court accurately observed that the parties had behaved disingenuously by failing to advise it that they were simultaneously litigating a matrimonial action that also concerned the issues of custody and visitation. In view of this improper behavior and the determination of those issues by the Supreme Court, we discern no improvident exercise of discretion in the Family Court's dismissal of this proceeding (see generally, Ramirez v. Ramirez, 171 A.D.2d 784). Mangano, P.J., Sullivan, Balletta and Miller, JJ., concur.