Matter of Onondaga County Dept. of Social Servs. v. Junior L. C., 01-01633

• Decision Date: 03 July 2002
• Docket Number: 01-01633,4
• Parties: MATTER OF ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES, O/B/O PATRICIA L.,, v JUNIOR L. C.,796 CAF 01-01633 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department Decided on
• Court: New York Supreme Court — Appellate Division

MATTER OF ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES, O/B/O PATRICIA L., PETITIONER-RESPONDENT v JUNIOR L. C., RESPONDENT-APPELLANT

796 CAF 01-01633

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

Decided on July 3, 2002

Appeal from an order of Family Court, Onondaga County (Klim, J.), entered March 23, 2001, which dismissed respondent's motion to vacate an order of filiation and support, entered June 15, 1992.

LEROY NATANSON, NORTH SYRACUSE, FOR RESPONDENT-APPELLANT.

MEMORANDUM AND ORDER

PRESENT: HAYES, J. P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following Memorandum: Respondent appeals from an order dismissing his pro se motion to vacate an order of filiation and support entered in 1992. Although the 1992 order recites that respondent was present in court for the filiation and support proceeding and admitted to paternity, respondent alleged in the instant motion that he was never notified of the filiation and support proceeding and never appeared in Family Court on the date set for the hearing. Respondent explains in his brief that he first became aware of the existence of the order when he was notified by the New York State Department of Motor Vehicles in the year 2000 that his driving privileges were being suspended based on child support arrears, pursuant to Family Ct Act 548-a.

Respondent was not physically present in court on the return date of his motion, but the record establishes that he was "available by telephone" to communicate with the court. The child's mother was present, and she stated on the record that respondent was present in court at the proceeding in 1992, admitted paternity at that time, and the child believed respondent was her father. The court did not attempt to communicate with respondent by telephone, and respondent did not participate in the "inquest." The court dismissed the motion on the ground that respondent failed to set forth sufficient grounds to reopen the 1992 order of filiation and support.

Relief from an order of paternity is governed by CPLR 5015 (a) (see Matter of D'Elia v Douglas B., 138 Misc 2d 370, 375), which provides for relief from a judgment or an order on the grounds of, inter alia, fraud and lack of jurisdiction. Respondent...