
    In the Matter of Baby Boy. Michael S. Goldstein, Nonparty Appellant.
    [656 NYS2d 931]
   —In a private adoption proceeding pursuant to Domestic Relations Law article 7, Michael S. Goldstein appeals, as limited by his brief, from so much of an order of the Family Court, Dutchess County (Brands, J.), entered May 6, 1996, as, sua sponte, reduced his agreed-upon counsel fee to $1,800.

Ordered that on the court’s own motion, the notice of appeal from the order entered May 6, 1996, is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [b] [1]); and it is further,

Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and the appellant is awarded the full amount of his agreed-upon counsel fee of $3,700.

While no appeal lies as of right from an order which does not determine a motion made on notice (see, CPLR 5701 [a] [2]; [c]; Kokalari v Kokalari, 166 AD2d 418), the notice of appeal from the order entered May 6, 1996, has been treated as an application for leave to appeal and leave has been granted.

The Family Court erred in disturbing the fee agreement and reducing the amount of the fee for which counsel was entitled to receive payment (see, Matter of Schmidt, 134 AD2d 432, 433). We further note that, notwithstanding the Family Court’s contrary observation, the agreement did not impermissibly provide for a nonrefundable retainer fee. O’Brien, J. P., Ritter, Krausman and Goldstein, JJ., concur.  