Matter of Commissioner of Social Servs. v Dimarcus C.

Matter of Matter of Commissioner of Social Servs. v Dimarcus C. 2012 NY Slip Op 02778 Decided on April 12, 2012 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 April 12, 2012
Saxe, J.P., Sweeny, Moskowitz, Renwick, Abdus-Salaam, JJ.
7367 7367A

[*1]In re Commissioner of Social Services, etc., Petitioner-Respondent,

v

Dimarcus C., Respondent-Appellant.




Kenneth M. Tuccillo, Hastings on Hudson, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Drake A.
Colley of counsel), for respondent.
Elisa Barnes, New York, attorney for the child.

Order, Family Court, New York County (Mary Bednar, J.), entered on or about December 1, 2010, which denied appellant's motion seeking genetic testing; and order of filiation, same court and Judge, also entered on or about December 1, 2010, declaring appellant to be the father of the subject child, unanimously affirmed, without costs.

The court properly determined that it was in the best interests of the child to estop respondent from denying that he is the child's father (see Matter of Shondel J v Mark D, 7 NY3d 320, 326 [2006]). The testimony established that respondent has held himself out to be the father to his friends, family and co-workers, permits the child to call him "daddy," brought the child to the funeral of his grandmother, watched the child at his workplace on a regular basis, and provided the mother with money for the child. Moreover, the social worker stated that the twelve-year old child believes that respondent is his father and understands that other men in the mother's life are not his father.

The court was not required to determine the child's biological father when it dismissed the petition brought against another man, whom DNA testing established was not the father. Nor [*2]was it required to have the other man joined as a necessary party to these proceedings since the child was born out of wedlock and a father-son relationship exists between the child and respondent.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 12, 2012

CLERK