Erie County Dept. of Social Services (Cheryl P.) v. Theodore D.

• Decision Date: 14 July 1995
• Docket Number: No. 1,1
• Citation: 217 A.D.2d 997,630 N.Y.S.2d 822
• Parties: Matter of ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of CHERYL P., Respondent, v. THEODORE D., Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 822

630 N.Y.S.2d 822

217 A.D.2d 997

Matter of ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of CHERYL P., Respondent, v. THEODORE D., Appellant. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

July 14, 1995.

Michael P. Clohessy, Buffalo, for appellant.

Erie County Attys. Office (Richard S. Usen, Deputy County Atty., of counsel), Buffalo, for respondent.

Before GREEN, J.P., and LAWTON, WESLEY, DAVIS and BOEHM, JJ.

MEMORANDUM:

Respondent appeals from an order of Family Court adjudicating him the father of a female child born on November 26, 1991. Respondent also appeals from the subsequent order of a Hearing Examiner directing him to pay child support of $25 per month. We note that respondent's notice of appeal was filed before the order of the Hearing Examiner was entered and, therefore, is premature (see, CPLR 5520[c] ). In any event, no appeal lies from the order of the Hearing Examiner because no objections were filed and the order was not reviewed by a judge (see, Family Ct. Act § 439[e]; Matter of Erie County Dept. of Social Servs. [Deborah A.R.] v. Felix M.C. [appeal No. 2], 209 A.D.2d 1031, 619 N.Y.S.2d 1019; Matter of Niagara County Dept. of Social Servs. [Kimmie W.] v. Randy M., 206 A.D.2d 878, 616 N.Y.S.2d 110). Thus, the appeal from that order is dismissed.

The order of filiation is not appealable as of right (see, Family Ct. Act § 1112[a]; Matter of Jane PP. v. Paul QQ., 64 N.Y.2d 15, 17, 483 N.Y.S.2d 1007, 473 N.E.2d 257). We deem the notice of appeal from the order of filiation to be an application for leave to appeal from that order, and, in the exercise of our discretion, grant leave to appeal (see, Family Ct. Act § 1112[e]; Matter of Niagara County Dept. of Social Servs. [Kimmie W.] v. Randy M., supra, at 878, 616 N.Y.S.2d 110; Matter of Erie County Dept. of Social Servs. [Holmes] v. Abdallah [appeal No. 2], 187 A.D.2d 967, 591 N.Y.S.2d 653).

There is no basis in the record to disturb the determination that petitioner met its burden of establishing respondent's paternity by clear and convincing evidence (see, Matter of Jane PP. v. Paul QQ., 65 N.Y.2d 994, 996, 494 N.Y.S.2d 93, 484 N.E.2d 122) and of rebutting the presumption of legitimacy by clear and convincing evidence (see, Matter of Cheryl A.B. v. Michael Anthony D., 209 A.D.2d 966, 619 N.Y.S.2d 437). "The greatest deference should be given to the decision of the hearing Judge who is in the best position to assess the credibility of the...