                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517437
________________________________

In the Matter of SUSAN UU.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

SCOTT VV.,
                    Respondent.
________________________________


Calendar Date:   May 29, 2014

Before:   Peters, P.J., Rose, Egan Jr., Lynch and Devine, JJ.

                             __________


      Moran & Gottlieb, Kingston (Andrea Moran of counsel), for
appellant.

      Bousquet Holstein, PLLC, Syracuse (Victor L. Prial of
counsel), for respondent.

     Daniel Gartenstein, Kingston, attorney for the child.

                             __________


Lynch, J.

      Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered June 11, 2013, which, in a proceeding
pursuant to Family Ct Act article 5, denied petitioner's motion
to vacate a prior order of the court.

      Petitioner and Christopher H. married in 2000 and three
children were born during the marriage, including Olivia H. (born
in 2001). They divorced in 2008 and, pursuant to the judgment of
divorce, which incorporated without merging a stipulation of
settlement, it was adjudged, among other things, that they have
three children, including Olivia; they were given joint custody
of the children, with primary physical custody with petitioner
                               -2-                517437

and parenting time with Christopher H., who was ordered to pay
child support for the children. In 2012, petitioner commenced
this paternity proceeding pursuant to Family Ct Act article 5
seeking, among other relief, a declaration that respondent is the
biological father of Olivia, then 12 years old.1 Respondent
moved to dismiss the paternity petition based upon, among other
grounds, the collateral estoppel effect of the judgment of
divorce2 (see CPLR 3211 [a] [5]). Petitioner did not respond to
that motion, although Olivia's attorney opposed the requested
relief. Family Court granted respondent's motion based upon
principles of collateral estoppel; no appeal was taken from that
order. Petitioner thereafter moved, pursuant to CPLR 5015 (a)
(1), to vacate that order. Family Court denied the motion,
concluding that its prior order of dismissal of the paternity
petition "was not issued on default but rather [was issued] on
the merits." Petitioner now appeals from the order denying her
motion to vacate.

      As an initial matter, respondent contends that petitioner
may not appeal the denial of her motion to vacate the order
dismissing her paternity petition since the dismissal order was
decided on the merits, rather than on petitioner's default;
accordingly, he contends, her only recourse was to appeal the
order of dismissal, which she failed to do. He further argues
that the motion to vacate was a pretext in that it was in
actuality a motion to reargue, the denial of which is not
appealable. We disagree with both contentions.

      Having failed to respond in any manner to respondent's
motion to dismiss, petitioner could not claim to be "aggrieved"
by the ensuing order (CPLR 5511; see David D. Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5511:1
at 128). As such, she was precluded from appealing the order of



    1
        Petitioner did not name Christopher H. as a party.
    2
        The children were represented by counsel in the divorce
action (compare Matter of Elacqua v James EE., 203 AD2d 688, 689
[1994]).
                              -3-                517437

dismissal on her default3 and her sole remedy was to move to
vacate the order entered upon her default (see CPLR 5015 [a] [1];
Matter of County of Albany [Bowles], 91 AD3d 1132, 1133 [2012]; M
& C Bros., Inc. v Torum, 75 AD3d 869, 870 [2010]; Matter of
Meghan H., 15 AD3d 802, 803 [2005], appeal dismissed 4 NY3d 845
[2005]; Matter of Ashley X., 200 AD2d 911, 911 [1994]). Thus,
the order denying the motion to vacate is appealable by
petitioner and Family Court should have addressed the merits of
her motion to vacate the dismissal order. Since the record is
sufficient to resolve the merits of petitioner's motion to
vacate, on which all parties have been heard, we will address it
in the interest of judicial economy (see Winney v County of
Saratoga, 252 AD2d 882, 884 [1998]). Even assuming that
petitioner's submissions on the motion demonstrate a reasonable
excuse for her default, we find that she failed to demonstrate a
meritorious defense to respondent's motion to dismiss. While
"the quantum of proof needed to prevail on a [motion to vacate
based upon excusable default] is less than that required when
opposing a summary judgment motion" (Abel v Estate of Collins, 73
AD3d 1423, 1425 [2010]; see Dodge v Commander, 18 AD3d 943, 945
[2005]), petitioner still must set forth a "prima facie
meritorious defense to the [motion to dismiss]" (Dodge v
Commander, 18 AD3d at 946). That is, she was required "to set
forth sufficient facts [or legal arguments] to demonstrate, on a
prima facie basis, that a defense existed" (Matter of Toyota
Motor Credit Corp. v Impressive Auto Ctr., Inc., 80 AD3d 861, 863
[2011]). This petitioner failed to do.




    3
        Neither the fact that the attorney for the child opposed
the motion to dismiss on the merits, nor the fact that Family
Court addressed the merits of that motion, alters the
appealability of that order by petitioner (see Britt v Buffalo
Mun. Hous. Auth., 109 AD3d 1195, 1196 [2013]). To the extent
that Manculich v Dependable Auto Sales & Serv., Inc. (39 AD3d
1070, 1071 [2007]) suggests that a party who defaults by failing
to respond to a motion may directly appeal from the resulting
order if it addresses the merits of the motion, it should not be
followed.
                              -4-                517437

      To invoke the doctrine of collateral estoppel as a defense
to petitioner's paternity petition, respondent was required to
establish "(1) . . . that an identical issue was necessarily
decided in a prior action which is decisive of the present
action, and (2) that the party to be precluded [here,
petitioner,] must have had a full and fair opportunity to contest
the prior decision said to be controlling" (Marotta v Hoy, 55
AD3d 1194, 1196 [2008]; see D'Arata v New York Cent. Mut. Fire
Ins. Co., 76 NY2d 659, 664 [1990]). We find that "[t]here can be
no question that the [identical] issue of [Olivia's] paternity
was decided in the [prior] divorce [judgment] when the specific
finding was made" that she is the child of petitioner and
Christopher H., petitioner's husband at the time of Olivia's
birth and who is listed on her birth certificate as her father
(Matter of Sandra I. v Harold I., 54 AD2d 1040, 1041-1042 [1976];
see Jeanne M. v Richard G., 96 AD2d 549, 549-550 [1983], appeals
dismissed 60 NY2d 858, 61 NY2d 637 [1983]).4 Such a finding was
a necessary prerequisite to the order of support, as only a
parent may be ordered to pay support for his or her child (see
Jeanne M. v Richard G., 96 AD2d at 550; Matter of Sandra I. v
Harold I., 54 AD2d at 1041; see also Matter of Melissa S. v
Frederick T., 8 AD3d 738, 739 [2004], lv dismissed 3 NY3d 688
[2004]; see generally Domestic Relations Law § 240; Family Ct Act


    4
        We recognize that a child is authorized to initiate a
paternity proceeding (see Family Ct Act § 522). Given that the
attorney for the child did not join in the mother's paternity
petition or file a petition on behalf of the child, we decline
counsel's request to "deem" the mother's petition "as being filed
on behalf of the child." Notably, the attorney for the child did
not appeal from the order dismissing the paternity petition or
the order denying petitioner's motion to vacate. "Generally, an
appellate court cannot grant affirmative relief to a nonappealing
party unless it is necessary to do so in order to accord full
relief to a party who has appealed" (Hecht v City of New York, 60
NY2d 57, 60 [1983]), which is not the case here. In so holding,
we have no occasion to expressly comment on whether the judgment
of divorce has a collateral estoppel effect upon the child
(compare Matter of Elacqua v James EE., 203 AD2d 688, 689
[1994]).
                              -5-                517437

§ 413 [1] [a]; cf. Matter of Nacey v Nacey, 116 AD2d 933, 934
[1986]).

      Although we are mindful that the judgment of divorce was
premised upon a stipulation of settlement between the parties, we
find that preclusion is appropriate. The Court of Appeals has
held that "collateral estoppel effect will only be given to
matters actually litigated and determined in a prior action"
(Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985] [internal
quotation marks and citation omitted]), and commented that "[a]n
issue is not actually litigated if, for example, there has been a
default, a confession of liability, a failure to place a matter
in issue by proper pleading or even because of a stipulation"
(id. at 456-457 [emphasis added]). However, it has been
recognized that "[a] stipulation may . . . be binding in a
subsequent action between the parties if the parties have
manifested an intention to that effect" (Restatement [Second] of
Judgments § 27, Comment e). Here, petitioner instituted the
divorce action in which she pursued and obtained an award of
custody and child support for Olivia pursuant to a stipulation of
settlement placed on the record, and included in the judgment of
divorce. By so doing, petitioner manifested her intention to
resolve these issues, which are predicated on paternity, in the
divorce action. In this context, the stipulation should be
treated as conclusive (see Matter of Hua Fan v Wen Zong Yu, 91
AD3d 952, 952 [2012]; Matter of Timothy J.T. v Karen J.H., 251
AD2d 1036, 1036 [1998], appeal dismissed, lv denied 92 NY2d 891
[1998]).

      Furthermore, respondent is entitled to assert collateral
estoppel notwithstanding the fact that he was not a party to the
divorce action, as "mutuality is not required" (Marotta v Hoy, 55
AD3d at 1196 n 3; see Gilberg v Barbieri, 53 NY2d 285, 291
[1981]; S.T. Grand, Inc. v City of New York, 32 NY2d 300, 304
[1973]; Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65,
70-71 [1969]). With regard to the second prong of the collateral
estoppal defense, petitioner must have had a full and fair
opportunity to litigate the previously decided issue, and it was
her burden, in order to defeat the application of collateral
estoppel, to demonstrate that she did not have that opportunity
(see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d at
                              -6-                  517437

664). Petitioner was represented by counsel in the divorce
action, and she has not alleged any facts from which it could be
concluded that she did not have the requisite full and fair
opportunity to litigate this issue (cf. Parker v Blauvelt
Volunteer Fire Co., 93 NY2d 343, 349-350 [1999]). As such,
petitioner has not demonstrated that a meritorious defense exists
to respondent's motion to dismiss based upon the collateral
estoppel effect – on the issue of Olivia's parentage – of the
prior divorce judgment. Given the foregoing, there was no basis
upon which to order blood tests (see Matter of Timothy J.T. v
Karen J.H., 251 AD2d 1036, 1036 [1998], appeal dismissed, lv
denied 92 NY2d 891 [1998]; Jeanne M. v Richard G., 96 AD2d at
549-550; Matter of Sandra I. v Harold I., 54 AD2d at 1041; see
also Matter of Melissa S. v Frederick T., 8 AD3d at 739).
Petitioner's remaining claims similarly lack merit.

     Peters, P.J., Rose, Egan Jr. and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
