| Matter of Jose F.R. v Reina C.A. |
| 2007 NY Slip Op 09594 [46 AD3d 564] |
| December 4, 2007 |
| Appellate Division, Second Department |
| In the Matter of Jose F.R., Appellant, v Reina C.A.,Respondent. |
—[*1] Myrka A. Gonzalez, Sayville, N.Y., for respondent. Tomasina Mastroianni, Westbury, N.Y., Law Guardian.
In a support proceeding pursuant to Family Court Act article 4, the petitioner appeals from anorder of the Family Court, Nassau County (Pessala, J.), dated October 23, 2006, which, after ahearing on the issue of equitable estoppel, denied his motion to vacate an order of filiation of thesame court (Watson, S.M.), dated March 17, 2004, and for DNA genetic marker testing.
Ordered that the order is affirmed, without costs or disbursements.
The doctrine of equitable estoppel may be invoked to preclude a parent from challenging anorder of filiation. In determining whether equitable estoppel should be applied, it is the child'sbest interests which are of paramount concern (see Matter of Gina L. v David W., 34 AD3d 810, 811 [2006];Matter of Griffin v Marshall, 294 AD2d 438 [2002]; Matter of Louise P. v ThomasR., 223 AD2d 592, 593 [1996]). Moreover, where a child justifiably relies on therepresentations of a man that he is his or her father with the result that he or she will be harmedby the man's denial of paternity, the man may be estopped from making such a denial (see Matter of Shondel J. v Mark D., 7NY3d 320, 327 [2006]).
Under the circumstances presented here, the Family Court properly determined that it was inthe subject child's best interests to apply the doctrine of equitable estoppel and deny thepetitioner's motion to vacate the order of filiation and for DNA genetic marker testing. Thehearing [*2]testimony established that the petitioner and thesubject child had established a parent-child relationship and that the subject child had developedrelationships with members of the petitioner's family. The hearing testimony also demonstratedthat the petitioner held himself out as the father of the subject child. Moreover, at the time thepetitioner challenged paternity, the subject child was over 10 years old and almost two years hadpassed since the petitioner consented to the filiation order. Contrary to the petitioner's contention,his current estrangement from the subject child did not preclude the application of equitableestoppel (see Matter of Shondel J. v Mark D., 7 NY3d at 331; Brian B. v Dionne B.,267 AD2d 188 [1999]; Richard B. v Sandra B.B., 209 AD2d 139, 144 [1995]).
Furthermore, the petitioner did not adequately support his claim of newly-discoveredevidence or fraud under CPLR 5015 (a) (3) to demonstrate that the order of filiation should bevacated (see Matter of Vernon J. vSandra M., 36 AD3d 912, 913 [2007]; Richard B. v Sandra B.B., 209 AD2d at144). Krausman, J.P., Fisher, Angiolillo and Balkin, JJ., concur.