IN RE: COMMISSIONER OF SOCIAL SERVICES (1997)

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered August 6, 1996, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, to direct respondent to pay for support of his child.

On September 25, 1995, 18-year-old Kelly “EE” became eligible to receive public assistance from petitioner.   Petitioner filed a petition in Family Court seeking support from respondent, Kelly's father (see, Social Services Law §§ 101-a, 102;  Family Ct. Act § 413), with whom she had resided until the fifth grade and for short periods in 1993 and 1995.   In his answer, respondent alleged abandonment (lack of visitation) as a defense (see, Family Ct. Act § 439[a] ).   Instead of referring the matter to a Judge, the Hearing Examiner proceeded to determine the petition and directed respondent to pay support.   Family Court denied respondent's objections and affirmed the Hearing Examiner's decision.   Respondent appeals.

We reverse without addressing the merits of respondent's appeal.   One of the issues that Hearing Examiners are not empowered to hear and determine is contested visitation, which includes visitation as a defense, alleged here as an abandonment (see, Family Ct. Act § 439[a];  Matter of Rubino v. Morgan, 203 A.D.2d 698, 699-670, 609 N.Y.S.2d 977).   Because the Hearing Examiner lacked subject matter jurisdiction, the order must be reversed and the matter remitted to Family Court for a new hearing (see, Matter of Handler v. Selbert, 221 A.D.2d 788, 789, 633 N.Y.S.2d 669;  Matter of Rubino v. Morgan, supra ).

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Tompkins County for further proceedings not inconsistent with this court's decision.

CARDONA, Presiding Justice.

MERCURE, WHITE and CARPINELLO, JJ., concur.