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

IN RE: JENNIFER “LL”,1 Appellant, v. MICHAEL “MM” 1 et al., Respondents.

Decided: December 27, 2001

Before:  CARDONA, P.J., MERCURE, CARPINELLO, ROSE and LAHTINEN, JJ. James E. Konstanty, Oneonta, for appellant. Larisa Obolensky, Delhi, for Michael“ MM”, respondent. Lester A. Sittler, Fly Creek, for Brian“ NN”, respondent.

Appeal from an order of the Family Court of Otsego County (Coccoma, J.), entered August 21, 2000, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 5, to vacate a prior order of filiation.

The child who is the subject of this proceeding is now 13 years old.   Petitioner is her mother and respondent Michael “MM” is the only father she has known since infancy, he having been so adjudged by an order of filiation entered in a 1989 paternity proceeding.   Notably, petitioner and Michael “MM” each appeared in that proceeding, waived their respective rights to representation by counsel, blood-grouping tests and a hearing and, after having been advised of the consequences of a paternity determination, both admitted that Michael “MM” was the child's father.

 In May 2000, nearly 111/212 years after the child was born and 11 years after the order of filiation, petitioner sought to vacate the order because another man, respondent Brian “NN”,1 has verbally claimed to be the child's biological father due to alleged similarities in their appearances.   Petitioner claims that the child's best interest, in addition to apparent “ misstatements” to Family Court at the time she and Michael “MM” appeared on the initial paternity petition, are “suitable and sufficient grounds” for vacatur.   We strongly disagree.

 As aptly noted by Family Court, the pertinent issue is “not whether [Michael “MM”] is the child's biological father, but whether [petitioner] made a sufficient demonstration that the prior order of filiation should be vacated” (Matter of Jennifer W. v. Steven X., 268 A.D.2d 800, 801, 702 N.Y.S.2d 215;  see, Matter of Rosa v. Diaz, 136 A.D.2d 512, 514, 523 N.Y.S.2d 1001).   As there is no reference in the petition to the specific statutory ground upon which petitioner seeks vacatur (see, CPLR 5015[a] ), it can only be gleaned from the record on appeal to be “newly-discovered evidence” (CPLR 5015[a][2] ).2  To this end, we note that an order settling the paternity of a child should not be vacated on this basis in the absence of “ ‘evidence strongly indicative of a result different than the one previously reached’ ” (Matter of Beaudoin [Patricia B.] v. Robert A., 199 A.D.2d 842, 844, 606 N.Y.S.2d 402, quoting Matter of Rosa v. Diaz, supra, at 514, 523 N.Y.S.2d 1001 [emphasis supplied] ).   Here, the only “new” evidence advanced in the petition is that Brian “NN” has allegedly claimed to be the child's father because the child resembles him.   This Court has found on numerous previous occasions that this type of dubious conjecture does not rise to the level of “newly discovered evidence” contemplated by CPLR 5015(a)(2) (see, Matter of Mary C. v. Charles E., 188 A.D.2d 718, 590 N.Y.S.2d 597, lv. denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969;  Matter of Rosa v Diaz, supra;  see also, Catherine A. v. David B., 249 A.D.2d 964, 672 N.Y.S.2d 169, lv. dismissed 92 N.Y.2d 919, 680 N.Y.S.2d 459, 703 N.E.2d 271;  Matter of Thomas v. Rosasco, 226 A.D.2d 800, 640 N.Y.S.2d 299;  Matter of Erie County Dept. of Social Servs. [Cebelle J.] v. Vaughn W., 197 A.D.2d 924, 602 N.Y.S.2d 462).

To the extent that petitioner claims that Family Court erred in not conducting a hearing in this matter, we note that petitioner never requested one (cf., Matter of Eugene F.G. v. Darla D., 261 A.D.2d 958, 689 N.Y.S.2d 848).   In any event, it is undisputed that Michael “MM” had been the only father the child had known for well over a decade and that he had been required to respond to various child support petitions and court supervised visitation disputes over the years without the issue of paternity ever having been raised (see, Matter of Thomas v Rosasco, supra;  see also, Matter of Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577 N.Y.S.2d 110;  cf., Matter of Commissioner of Social Servs. of Tompkins County [Barbara A.] v. Gregory B., 211 A.D.2d 956, 621 N.Y.S.2d 727).

ORDERED that the order is affirmed, without costs.


2.   Indeed, petitioner confirms on appeal that she seeks to vacate the prior order on this ground.   She also refers to an additional ground in her brief, that is, “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015[a][3] ).   Surely, petitioner knew that she had engaged in sexual intercourse with more than one individual during the probable period of conception and thus can hardly be considered the victim of fraud, misrepresentation or misconduct concerning the paternity of her child.



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