Opinion
127 CAF 20-00667
02-11-2021
In the Matter of KRISTEN B., Petitioner-Appellant, v. STEVEN Z., Respondent-Respondent.
PETER J. DIGIORGIO, JR., UTICA, FOR PETITIONER-APPELLANT. DIANE MARTIN-GRANDE, ROME, FOR RESPONDENT-RESPONDENT. COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILD.
PETER J. DIGIORGIO, JR., UTICA, FOR PETITIONER-APPELLANT.
DIANE MARTIN-GRANDE, ROME, FOR RESPONDENT-RESPONDENT.
COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding seeking to vacate an acknowledgment of paternity more than 60 days after it was signed, petitioner mother appeals from an order that, inter alia, dismissed her amended petition pursuant to CPLR 3211 (a) (7). We affirm.
A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must establish the existence of fraud, duress, or a material mistake of fact before Family Court is required to order DNA or genetic marker testing ( see Family Ct Act § 516-a [b] [iv] ; Matter of Demetrius H. v. Mikhaila C.M. , 35 A.D.3d 1215, 1215-1216, 827 N.Y.S.2d 810 [4th Dept. 2006] ; Matter of Westchester County Dept. of Social Servs. v. Robert W.R. , 25 A.D.3d 62, 69, 803 N.Y.S.2d 672 [2d Dept. 2005] ). Assuming the truth of the allegations in the amended petition and according petitioner the benefit of every favorable inference, we conclude that the facts alleged in the amended petition do not fit into any of the specified grounds for vacatur of an acknowledgment of paternity more than 60 days after it was executed ( Matter of Joshua AA. v. Jessica BB. , 132 A.D.3d 1107, 1108, 19 N.Y.S.3d 116 [3d Dept. 2015] ; Matter of Ronnyeh R. v. Gwendolyn M. , 99 A.D.3d 717, 717, 951 N.Y.S.2d 404 [2d Dept. 2012] ; see also Demetrius H. , 35 A.D.3d at 1216, 827 N.Y.S.2d 810 ).