Opinion
CAF 02-00320
June 14, 2002.
Appeal from an order of Family Court, Orleans County (Punch, J.), entered November 5, 2001, which, inter alia, denied that part of respondent's motion seeking to vacate the order of filiation.
LACY, KATZEN, RYEN MITTLEMAN, LLP, ROCHESTER (SUZANNE L. AMICO OF COUNSEL), FOR RESPONDENT-APPELLANT.
JOHNSON, MULLAN BRUNDAGE, P.C., ROCHESTER (DAVID C. KING OF COUNSEL), FOR PETITIONER-RESPONDENT.
CHARLES PLOVANICH, LAW GUARDIAN, ROCHESTER, FOR GLENN D.C.
PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, SCUDDER, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Family Court properly denied that part of respondent's motion seeking to vacate the order of filiation entered September 15, 1986 upon respondent's admission of paternity with respect to a child born out of wedlock to petitioner in October 1986. An order of filiation "purporting to settle something as fundamentally important as the paternity of a child is not susceptible of vacatur upon anything but newly discovered evidence strongly indicative of a result different than the one previously reached" ( Catherine A. v. David B., 249 A.D.2d 964, 964, lv dismissed 92 N.Y.2d 919 [internal citations omitted]). Respondent failed to establish that there was newly discovered evidence that he is not the child's father; indeed, he admitted at the hearing that his motion was based on allegations made to him more than 10 years earlier.
Although the court initially granted that part of the motion of respondent seeking genetic marker testing for himself, petitioner and the child, the court properly vacated that order upon the law guardian's motion to deny that requested relief on the ground of equitable estoppel. Following a hearing and an in camera interview with the 14-year-old child, the court properly determined that it is not in the child's best interests to order the genetic marker test ( see Family Ct Act § 418 [a]; Hammack v. Hammack, 291 A.D.2d 718, 719-720). "Given the delay of [nearly 14] years from the child's birth to [respondent's] application, it was incumbent upon [respondent] to proffer more than conjecture that the boy is not his child" ( Catherine A., 249 A.D.2d 965).