Opinion
2013-11-13
In the Matter of RICARDO H. (Anonymous), appellant, v. CHANTE S. (Anonymous), et al., respondents.
Robert H. Montefusco, P.C., Islandia, N.Y., for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Mary Ann Filosa of counsel), for respondent Suffolk County Department of Social Services.
Robert H. Montefusco, P.C., Islandia, N.Y., for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Mary Ann Filosa of counsel), for respondent Suffolk County Department of Social Services.
John Ciampoli, County Attorney, Mineola, N.Y. (David A. Tauster of counsel; David Contino on the brief), for respondent Nassau County Department of Social Services.
Paraskevi Zarkadas, Centereach, N.Y., attorney for the child.
In a proceeding pursuant to Family Court Act article 5, the father appeals from an order of the Family Court, Suffolk County (Budd, J.), dated August 23, 2012, which, in effect, denied his motion, inter alia, to vacate an order of filiation of the same court (J. Doyle, J.), dated October 13, 1992, adjudging him to be the father of the subject child.
ORDERED that the order is affirmed, with one bill of costs payable to the respondents.
In April 2009, the petitioner moved to vacate an order of filiation entered in 1992 upon his failure to appear for a blood test he had requested. The Family Court denied that motion and the petitioner did not appeal. Thereafter, in 2012, the petitioner *796filed the instant motion, inter alia, to vacate the 1992 order of filiation. Contrary to the petitioner's contentions, the Family Court did not err by, in effect, denying the instant motion.
Initially, the petitioner is precluded from making a second motion to vacate on the same grounds as were raised in his prior motion ( see Viva Dev. Corp. v. United Humanitarian Relief Fund, 108 A.D.3d 619, 620, 968 N.Y.S.2d 379;JMP Pizza, LLC v. 34th St. Pizza, LLC, 104 A.D.3d 648, 960 N.Y.S.2d 318;47 Thames Realty, LLC v. Robinson, 85 A.D.3d 851, 925 N.Y.S.2d 585;Bianco v. Dougherty, 54 A.D.2d 681, 387 N.Y.S.2d 263). Moreover, to the extent that the petitioner asserted that the 1992 order of filiation should be vacated on the ground of newly discovered evidence, he failed to establish that the evidence he relied on could not have been timely discovered through the exercise of due diligence ( see CPLR 5015[a][2]; Matter of Jose F.R. v. Reina C.A., 46 A.D.3d 564, 565, 846 N.Y.S.2d 630;Matter of Vernon J. v. Sandra M., 36 A.D.3d 912, 830 N.Y.S.2d 213;see generally Matter of State Farm Ins. Co. v. Colangelo, 44 A.D.3d 868, 843 N.Y.S.2d 667;Roslyn Sav. Bank v. Kline, 17 A.D.3d 441, 792 N.Y.S.2d 332). Indeed, as the Family Court properly noted, such evidence “could have been discovered nearly twenty years ago.”
The petitioner's remaining contentions are without merit.