Commissioner of Social Services Ex Rel. Michelle W. v. Dwayne W. , 146 A.D.3d 718 ( 2017 )

Matter of Commissioner of Social Servs. v Dwayne W. (2017 NY Slip Op 00595)

Matter of Commissioner of Social Servs. v Dwayne W.

2017 NY Slip Op 00595

Decided on January 31, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 31, 2017
Mazzarelli, J.P., Manzanet-Daniels, Feinman, Webber, Gesmer, JJ.

2925

[*1]In re Commissioner of Social Services, on behalf of Michelle W., Petitioner-Respondent,

v

Dwayne W., Respondent-Appellant.

Tennille M. Tatum-Evans, New York, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.

Law offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), attorney for the child.

Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about August 21, 2015, which adjudged and declared that respondent is the father of the subject child, unanimously affirmed, without costs.

Family Court properly determined that it is in the child's best interest to equitably estop respondent from having a DNA test to establish paternity (see Family Ct Act § 532[a]). Clear and convincing evidence demonstrates that respondent held himself out as the father of the child and that the now 10-year-old child considers respondent to be his father (Matter of Shondel J. v Mark D., 7 NY3d 320, 326-327 [2006]; Matter of Kerry Ann P. v Dane S., 121 AD3d 470, 471 [1st Dept 2014]). The child lived with respondent, his mother and siblings for about two years, calls respondent "dad" and spends time with him on birthdays and holidays, including Father's Day. Respondent introduced the child to his family and friends as his son, and allowed the child to spend time and develop relationships with his family. Issues of credibility were for Family Court to resolve and its determination to credit the testimony of the mother and the child and to reject that of respondent is supported by the record (see Matter of Kerry Ann P., 121 AD3d at 471).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2017

CLERK