IN RE: LYSSA G. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: LYSSA G. (Anonymous), Appellant, v. ANTHONY H. (Anonymous), Respondent.

Decided: June 30, 1997

Before O'BRIEN, J.P., and GOLDSTEIN, McGINITY and LUCIANO, JJ. Paul A. Crotty, Corporation Counsel, New York City (Kristin M. Helmers and A. Orli Spanier, of counsel), for appellant. Kahn & Gordon, P.C., New York City (Dario Perez, of counsel), for respondent.

In a proceeding seeking a declaration of paternity and child support pursuant to the Uniform Support of Dependents Law (Domestic Relations Law § 30 et seq), the petitioner appeals from an order of the Family Court, Kings County (Hepner, J.), dated December 7, 1995, which, after a hearing, dismissed the petition.

ORDERED that the order is reversed, on the facts, with costs, the petition is granted, the respondent is declared the father of the subject child, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith.

 It is well settled that paternity must be established by clear and convincing evidence creating a genuine belief that the respondent is the father of the child (see, Matter of Jane PP. v. Paul QQ., 64 N.Y.2d 15, 483 N.Y.S.2d 1007, 473 N.E.2d 257;  Matter of Commissioner of Social Services [Patricia A.] v. Philip De G., 59 N.Y.2d 137, 463 N.Y.S.2d 761, 450 N.E.2d 681).   While the results of the human leukocyte antigen (hereinafter HLA) test are not conclusive, they are highly probative on the issue of paternity (Matter of Betty O. v. Joseph O., 222 A.D.2d 508, 509, 635 N.Y.S.2d 66;  Matter of Department of Social Servs. [Andrea F.] v. Kevin Y., 222 A.D.2d 504, 635 N.Y.S.2d 248;  Matter of Nancy M.G. v. James M., 148 A.D.2d 714, 539 N.Y.S.2d 458).   Here the HLA test showed a probability of paternity of 99.91%. While this court will not ordinarily disturb findings made by a Family Court which involve the credibility of witnesses (see, Matter of Westchester County Dept. of Social Servs. [Jean T.] v. Alfred H., 186 A.D.2d 573, 588 N.Y.S.2d 375), we conclude that the Family Court's dismissal of the petition in this case is contrary to the weight of the evidence.   The respondent produced insufficient credible evidence to overcome the presumption of paternity (see, Family Ct. Act § 532[a] ).


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