Opinion
March 18, 1991
Appeal from the Family Court, Richmond County (Meyer, J.).
Ordered that the appeal from the nondispositional order is dismissed; and it is further,
Ordered that the order dated October 29, 1990, is affirmed; and it is further,
Ordered that the petitioner is awarded one bill of costs.
The appeal from the nondispositional order is dismissed, as no appeal lies from that order as of right (see, Family Ct Act § 1112). However, the issues raised on appeal from the nondispositional order are brought up for review and have been considered on appeal from the dispositional order.
Although the dispositional order was entered upon the appellant's default in appearing at a hearing on the merits of the petitioner's custody application, since the question of jurisdiction was the "subject of contest" in the court from which the appeal was taken (see, Katz v Katz, 68 A.D.2d 536), that issue is reviewable on this appeal. Review on the merits of the custody issue, is, however, precluded by the appellant's default.
We find that the Family Court properly concluded that it had both subject matter jurisdiction and personal jurisdiction over the parties. Pursuant to Domestic Relations Law § 75-d (1) (a), it is clear that the New York courts have jurisdiction over this custody matter, since New York was the "home state" of the children at the time of commencement of the custody proceeding. Further, the New York courts have personal jurisdiction over the appellant, since he submitted to the jurisdiction of the court when his attorney appeared on the return date of the petition and offered a defense on the merits without asserting the defense of lack of personal jurisdiction (see, Domestic Relations Law § 75-f; Matter of Katz, 81 A.D.2d 145, 148-150, affd 55 N.Y.2d 904; Colbert v International Sec. Bur., 79 A.D.2d 448). Bracken, J.P., Eiber, Balletta and Ritter, JJ., concur.