Falcon v. Accardi , 598 N.Y.S.2d 406 ( 1993 )

Order unanimously affirmed without costs. Memorandum: Family Court properly directed respondent to pay the mother’s expenses in connection with her confinement and recovery during the birth of the child (see, Family Ct Act §§ 514, 545 [1]). Because the mother received public assistance from the time the child was born until the time of the proceeding, imposing full costs of the mother’s confinement upon respondent was within the court’s sound discretion (see, Matter of Cortland County Dept. of Social Servs. v Thomas ZZ., 141 AD2d 119, 123; Matter of Lisa M. UU. v Mario D. VV., 78 AD2d 711). Contrary to respondent’s contention, his liability to pay the mother’s confinement expenses does not depend upon his ability to pay at the time of the birth (see, Family Ct Act §§ 514, 545 [1]; Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d 451).

We reject respondent’s contention that he was denied due process. The record establishes that the Hearing Examiner advised respondent of his right to counsel; however, respondent elected to proceed on his own (see, Family Ct Act § 433; Linder v Linder, 122 AD2d 27; Matter of Dickstein v Dickstein, 99 AD2d 929). Respondent was not denied equal protection on the ground that Family Court Act § 514 imposes liability upon fathers but not mothers for confinement costs (see, Matter of Lisa M. UU. v Mario D. VV., supra; see also, Family Ct Act § 545 [1]).

Respondent’s support obligation was properly set at 17% of his income, based upon his hourly wage of $8.75 (see, Family Ct Act § 413 [1] [b] [3] [i]).

The issue of respondent’s liability for the mother’s confinement costs was not previously litigated in the paternity proceeding. Therefore, the Department of Social Services is not barred by principles of res judicata from seeking reimbursement for those costs in the present proceeding (see generally, Matter of Hodes v Axelrod, 70 NY2d 364, 372-373). (Appeal from Order of Erie County Family Court, Townsend, J.—Child Support.) Present—Callahan, J. P., Green, Lawton, Doerr and Boehm, JJ.