Erie County Department of Social Services ex rel. Deborah A. R. v. Felix M. C.

209 A.D.2d 1031, 619 N.Y.S.2d 1019

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1994
• Docket: Appeal No. 2
• Status: Published

Opinion

—Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Where, as here, no objections were filed with Family Court from the order of a Hearing Examiner, no appeal lies from the Hearing Examiner’s order of support and the appeal is dismissed (see, Family Ct Act § 439 [e]; Matter of Erie County Dept. of Social Servs. [Holmes] v Abdallah [appeal No. 2], 187 AD2d 967). We deem the notice of appeal from the order of filiation to be an application for leave to appeal from that order, and, in the exercise of our discretion, grant leave to appeal (see, Family Ct Act § 1112 [a]; Matter of Erie County Dept. of Social Servs. [Holmes] v Abdallah [appeal No. 2], supra).

Petitioner failed to establish paternity by clear, convincing and satisfactory evidence that would have created a genuine belief that respondent is the father of the child (see, Matter of Hardenbrook v Farley, 130 AD2d 969, 969-970; Matter of Snyder v Davis, 53 AD2d 1026). The mother changed her testimony regarding when respondent stopped visiting her at her home. She never contacted respondent about her pregnancy or the birth of the child and did not name respondent as the child’s father on the birth certificate. Additionally, the results of a blood genetic marker test were inconclusive and no other medical evidence regarding paternity was offered. (Appeal from Order of Erie County Family Court, Trost, J.H.O.—Paternity.) Present—Lawton, J. P., Fallon, Wesley, Doerr and Boehm, JJ.