J.K.S., Plaintiff–Respondent, v. R.P.S., Defendant–Appellant. (2026)

Appeal from order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about June 23, 2025, which declined to sign defendant husband's order to show cause seeking, among other things, dismissal of the action based on lack of subject matter jurisdiction, unanimously dismissed, without costs, as taken from a nonappealable order.

No appeal lies from an order declining to sign an order to show cause, as such an order is ex parte and does not determine a motion made on notice (see CPLR 5701[a][2];  Chi Young Lee v Osorio, 184 AD3d 417, 417 [1st Dept 2020] ).

Even if the paper were appealable, the issue of plaintiff wife's residency in New York concerns the merits of the divorce adjudication, not the court's competence to adjudicate it (see Lacks v Lacks, 41 NY2d 71, 73 [1976];  Bourjolly v Mouscardy, 85 AD3d 627, 627 [1st Dept 2011] ).  Moreover, the husband waived the non-subject matter jurisdiction defense by failing to timely raise it and by actively participating in the litigation for approximately five years (see Casey v Casey, 39 AD3d 579, 580 [2d Dept 2007] ).

We have considered the remaining arguments and find them unavailing.

Motion for dismissal of the appeal, sanctions, and attorneys' fees, denied.