| Matter of Shawn H. v Kimberly F. |
| 2014 NY Slip Op 01610 [115 AD3d 744] |
| March 12, 2014 |
| Appellate Division, Second Department |
| In the Matter of Shawn H., Appellant, v KimberlyF., Respondent. |
—[*1] Carl D. Birman, Mamaroneck, N.Y., for respondent. Steven Ranellone, White Plains, N.Y., attorney for the child.
In a child support proceeding pursuant to Family Court Act article 4, the fatherappeals from an order of the Family Court, Westchester County (Greenwald, J.), datedDecember 10, 2012, which, upon sua sponte vacating a prior order of the same courtdated February 17, 2012, directing, after a hearing on the issue of equitable estoppel, theparties and the child to submit to genetic marker testing, denied the father's petition tovacate an order of filiation dated April 24, 2000, entered on consent.
Ordered that the order dated December 10, 2012, is affirmed, with costs.
Initially, contrary to the father's contention, the Family Court acted within itsauthority in, sua sponte, reconsidering its own nonfinal order, which is not appealable asof right, during the pendency of the proceeding (see Liss v Trans Auto Sys., 68NY2d 15, 20 [1986]; Matter of Budihas v Board of Educ. of City of N.Y., 285AD2d 549, 550 [2001]; cf.Adams v Fellingham, 52 AD3d 443, 444 [2008]).
Further, the Family Court properly determined that the father was equitably estoppedfrom challenging the order of filiation. "[W]here a child justifiably relies on therepresentations of a man that he is his or her father with the result that he or she will beharmed by the man's denial of paternity, the man may be estopped from making such adenial" (Matter of Jose F.R. vReina C.A., 46 AD3d 564, 564 [2007]; see Matter of Smythe v Worley, 72 AD3d 977, 978[2010]). The paramount concern in applying the doctrine of equitable estoppel in thiscontext is the best interests of the subject child (see Matter of Shondel J. v Mark D., 7 NY3d 320, 326[2006]; Matter of Smythe v Worley, 72 AD3d at 978; Matter of Jose F.R. vReina C.A., 46 AD3d at 565).
Here, the order of filiation was entered approximately 10 years prior to the instantpetition, and the father had been paying child support during that time. In addition, thefather sought, and was granted, visitation with the subject child, which he exercised,although sporadically. The father attended some of the child's school functions andparent-teacher conferences, had telephone [*2]contactwith the child, and saw the child on some of her birthdays. The child, who was 15 yearsold at the time the father's petition was filed, was acquainted with some of the father'sfamily members, considered the father to be her father, and had never known any otherfather. Under these circumstances, the Family Court properly invoked the doctrine ofequitable estoppel to preclude the father's challenge to the order of filiation (see Matter of Commissioner ofSocial Servs. v Julio J., 20 NY3d 995, 997 [2013]; Matter of Merritt v Allen, 99AD3d 1006, 1007 [2012]; Matter of Smythe v Worley, 72 AD3d at 979;Matter of Jose F.R. v Reina C.A., 46 AD3d at 564-565), and "the evidenceindicating that the parent-child relationship was somewhat limited did not preclude theapplication of [that] doctrine" (Matter of Smythe v Worley, 72 AD3d at 979; see Matter of Glenda G. v MarianoM., 62 AD3d 536 [2009]; Matter of Sarah S. v James T., 299 AD2d785, 785-786 [2002]). Accordingly, the father's petition to vacate an order of filiationentered on consent was properly denied. Skelos, J.P., Dillon, Dickerson and Austin, JJ.,concur.