| Matter of Philip K. v Thervey B. |
| 2008 NY Slip Op 10001 [57 AD3d 781] |
| December 16, 2008 |
| Appellate Division, Second Department |
| In the Matter of Philip K., Appellant, v Thervey B.,Respondent. |
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In a paternity proceeding pursuant to Family Court Act article 5, the petitioner appeals from anorder of the Family Court, Richmond County (McElrath, J.), dated June 15, 2007, which denied hisobjections to an order of the same court (Weir-Reeves, S.M.), dated May 9, 2007, dismissing thepetition, with prejudice.
Ordered that the order dated June 15, 2007 is reversed, on the law, without costs ordisbursements, the objections are sustained to the extent that the order dated May 9, 2007 is vacated,the petition is reinstated, and the matter is remitted to the Family Court, Richmond County, for furtherproceedings consistent herewith.
The petitioner commenced the instant paternity proceeding pursuant to Family Court Act article 5,alleging that he is the father of the subject child, who was born to the respondent. A "Genetic Test" wasdirected by the Family Court. The alleged results thereof, which were contained in a report, excludedthe petitioner as the father.
At a subsequent court proceeding, the Family Court dismissed the petition with prejudice, basedsolely upon the aforementioned genetic test report. The petitioner stated that he "believe[d]" that thereport was not "complete." The court, however, stated that the report was "certified by a lab" andreiterated that the petition was dismissed with prejudice.
The Family Court erred in dismissing the instant petition solely upon the basis of the genetic testreport (see Matter of Donald I. v Teresa K., 221 AD2d 862 [1995]; Matter of Juliet C. vGerald B., 202 AD2d 196 [1994]; Matter of Burns v Craven, 192 AD2d 1130 [1993]).This report was not admitted into evidence (compare Matter of Liduvina F. v Orlando A.M.,295 AD2d 234 [2002]). Family Court Act § 531 provides for a trial "by the court without ajury" in a paternity proceeding. The petitioner should have been afforded an opportunity to presentevidence at a trial, including any evidence relating to the Genetic Test report. Accordingly, we remit thematter to the Family Court, Richmond County, for a trial and a new determination of the petitionthereafter. Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.