

Matter of Cayra M. v Fotis B. (2017 NY Slip Op 01130)





Matter of Cayra M. v Fotis B.


2017 NY Slip Op 01130


Decided on February 10, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 10, 2017

Sweeny, J.P., Acosta, Mazzarelli, Manzanet-Daniels, Webber, JJ.


3066 3065

[*1]In re Cayra M., Petitioner-Respondent,
vFotis B., Respondent-Appellant.


Law Offices of Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Max O. McCann of counsel), for respondent.

Order, Family Court, New York County (Gloria Sosa-Lintner, J.), entered on or about May 14, 2014, which dismissed respondent's objection to an order of filiation entered on his default, unanimously affirmed, without costs. Order, same court and Judge, entered on or about July 23, 2015, which dismissed respondent's objection to the denial of his motion to vacate his default in the paternity proceeding, unanimously reversed, without costs, on the law, on the facts, and in the exercise of discretion, the order of filiation vacated, and the matter remanded for a paternity hearing.
Family Court properly dismissed respondent's initial objection to the order of filiation, because he failed to move to vacate his default. However, Family Court erred in dismissing the objection to the denial of respondent's subsequent motion to vacate his default. Respondent presented a reasonable excuse for his default — namely, his attorney's approximate 20-minute delay in appearing in Family Court due to an appearance in another court. Petitioners were not prejudiced by the slight delay, and disposition of cases on the merits is preferred as a matter of public policy (see Fromartz v Bodner , 266 AD2d 122 [1st Dept 1999]).
Respondent also presented evidence of a meritorious defense. Although the DNA test showed that there was a 99.9% probability that respondent was the child's father, respondent stated that his identical twin brother, who was in the courtroom and was prepared to testify, had sexual relations with petitioner mother during the conception period. The brother's testimony may have rebutted the presumption of paternity provided in Family Court Act § 532(a) and CPLR 4518(d) (see Matter of Jane PP. v Paul QQ. , 65 NY2d 994, 996 [1985]), if respondent was also able to demonstrate that he and his brother have identical DNA. Further, the best interests of the subject child are not furthered by a possibly erroneous paternity finding.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 10, 2017
CLERK


