Opinion
March 18, 1991
Appeal from the Family Court, Queens County (Lauria, J.).
Ordered that the order is affirmed, without costs or disbursements.
Under the circumstances herein, the Family Court properly upheld the Hearing Examiner's refusal to consider the petitioner's application. While the Family Court had both subject matter jurisdiction and in personam jurisdiction over the respondent (see, e.g., Matter of Wolinsky v Wolinsky, 133 A.D.2d 768; Matter of Roy v Roy, 109 A.D.2d 150, 152; Matter of Denzer v Denzer, 56 A.D.2d 601; Oster v Oster, 54 A.D.2d 584), the Family Court was not required to exercise that authority (see, Matter of Roy v Roy, supra, at 152). The Hearing Examiner did not deny the petitioner's application on the merits. Rather, she indicated that she would not consider the application while a matrimonial action was pending between the parties in the Supreme Court, absent a referral from the Supreme Court. Under the circumstances, we find no basis to disturb the Family Court's exercise of discretion in refusing to consider the petitioner's application at this time (see, Matter of Doe v Doe, 50 Misc.2d 255; "Varney" v "Varney", 178 Misc. 165; see also, Lanzatella v Lanzatella, 121 Misc.2d 876). Kooper, J.P., Lawrence, Harwood and Balletta, JJ., concur.