Opinion
July 21, 1994
Appeal from the Family Court, New York County (Jeffrey H. Gallet, J.).
Since the respondent has defaulted in appearance, the paternity affidavit, sworn to by the mother under penalty of perjury, is uncontroverted. This affidavit sufficiently establishes, by clear and convincing evidence, that respondent is the father of the subject child. We note that while the Family Court expressed concern that "[t]here is no indication that [respondent] acknowledged paternity at any time," the mother's affidavit states that respondent "has admitted that he is the father of the child" and that he visited the child "once."
The Family Court, noting that the "presumption of legitimacy goes to the moment of conception" (see, Matter of Department of Social Servs. [Collette] v. Overdorf, 115 A.D.2d 274, 275), also relied on the absence of any statement by the mother that she was not married at the time of conception. In view of the mother's statements that she was not married at the time the child was born and that there is not a legally presumed father (other than respondent) under the law of the responding State, where the child was conceived and born, this deficiency is not fatal.
Motion insofar as it seeks reargument is granted, and upon reargument the unpublished prior decision and order of this Court entered on April 12, 1994 is recalled and vacated and a new decision and order substituted therefor. That portion of the motion insofar as it seeks leave to appeal to the Court of Appeals is denied.
Concur — Sullivan, J.P., Asch, Nardelli and Tom, JJ.