Opinion
March 23, 1987
Appeal from the Family Court, Westchester County (Bellantoni, J.).
Ordered that the appeal from the order entered October 18, 1985, is dismissed, as it is not an order of disposition and is not appealable as of right (see, Family Ct Act § 1112); and it is further,
Ordered that on the court's own motion, the appellant's notice of appeal from the order entered August 26, 1985, is treated as an application for leave to appeal, said application is referred to Justice Rubin and leave to appeal is granted by Justice Rubin (see, Family Ct Act § 1112); and it is further,
Ordered that the order entered August 26, 1985, is affirmed; and it is further,
Ordered that the petitioner is awarded one bill of costs.
The findings of a Trial Judge, sitting without a jury, should be accorded great weight and should not be disturbed on appeal unless they are found to be contrary to the weight of the evidence (see, Matter of Constance G. v. Herbert Lewis L., 119 A.D.2d 209; Matter of Susan W. v. Amhad Q., 65 A.D.2d 594, lv denied 46 N.Y.2d 1037). The proof in the present record includes the results of a Human Leucocyte Antigen (HLA) test and a combined genetic marker test, which indicated a probability of paternity of 97.58%. It also includes credible evidence as to the inaccessibility of the petitioner's former husband and the recurrent acts of sexual intercourse that the petitioner had with the appellant during the time critical to the determination of paternity. Such proof was sufficient to rebut the presumption of legitimacy and to support the Trial Judge's finding that the petition had been sustained by clear and convincing evidence (see, Matter of Jane PP. v. Paul QQ., 65 N.Y.2d 994; Matter of Constance G. v. Herbert Lewis L., supra; Matter of Joan G. v Robert W., 83 A.D.2d 838).
Contrary to the appellant's further contention, given the fact that the petitioner and her former husband never cohabited during the period of gestation or after the birth of the child, and the fact that the instant proceeding was not brought for the sole purpose of advancing the petitioner's custody or visitation rights, but solely for the support of the child, we find no reason to invoke the doctrine of equitable estoppel against her (cf., Matter of Boyles v. Boyles, 95 A.D.2d 95; State of New York ex rel. H. v. P., 90 A.D.2d 434; Hill v. Hill, 20 A.D.2d 923).
Finally, we reject the appellant's contention that the petition should have been dismissed for failure to join the child and the petitioner's former husband as parties (see, Matter of Cathleen P. v. Gary P., 63 N.Y.2d 805; Commissioner of Pub. Welfare v Koehler, 284 N.Y. 260, 266-267). Mollen, P.J., Thompson, Rubin and Kunzeman, JJ., concur.