SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
May 21, 1968
IN THE MATTER OF THE COMMISSIONER OF WELFARE OF THE CITY OF NEW YORK
Concur -- Stevens, J. P., Steuer, McGivern, Rabin and McNally, JJ.
Respondent has appealed to this court from an order of the Family Court denying his motion to dismiss a petition on the ground that the Commissioner of Welfare had no capacity to commence the filiation proceeding. Under section 1012 of the Family Court Act an appeal may be taken to the Appellate Division as of right from any order of disposition; but only in the discretion of the appropriate Appellate Division from any other order of the Family Court. This court has indicated that an order of disposition is a final order(Matter of Taylor v. Taylor, 23 A.D.2d 747). An order denying a motion to dismiss a proceeding in Family Court is not an order of disposition from which an appeal lies as of right (Matter of Hillman v. Minicozzi, 25 A.D.2d 866). Consequently, the instant appeal could not be taken as of right, and since no permission to appeal has been sought or granted, there is presently no valid appeal before this court. The court, thus, has no jurisdiction to pass on the application for a stay. No leave to appeal having been obtained this court will sua sponte dismiss the appeal. Attention should also be called to the incorrect procedure in applying to the court rather than to a Justice of the court for a stay as required by subdivision (b) of section 1014 of the Family Court Act.
Motion for a stay denied, without prejudice, and appeal dismissed, sua sponte.
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