#### In the Matter of Sidney W., Appellant, v Chanta J., Respondent.

[978 NYS2d 274]

*951In a proceeding pursuant to Family Court Act § 516-a to vacate an acknowledgment of paternity, the petitioner appeals from an order of the Family Court, Westchester County (Malone, J.), entered December 7, 2012, which, after a hearing, inter alia, denied the petition.

Ordered that the order is reversed, on the law and the facts, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Westchester County, for further proceedings in accordance herewith.

In the summer of 2007, the parties, while they were coworkers, became involved in a sexual relationship. They continued this relationship on an intermittent basis until the summer of 2010. In the interim, in December 2009, the respondent mother informed the petitioner that she was pregnant and that he was the father of the child.

The subject child was born in September 2010. The petitioner was present in the delivery room when the child was born and returned to the hospital to bring the respondent and the child home to the respondent’s residence. On that day, the respondent presented the petitioner with an acknowledgment of paternity (hereinafter AOP) and asked the petitioner to sign it, which he did.

In December 2011, the petitioner filed the subject petition to vacate his AOP based, inter alia, on a material mistake of fact, alleging that after the child was born, the respondent revealed that she had been involved in an intimate relationship with another man during the period in which the child was conceived, and that the other man was the father of the child. The respondent opposed the petition.

At the beginning of the hearing regarding the petition to vacate the AOP the attorneys for the petitioner and the respondent informed the court that the parties had consented to a finding of a material mistake of fact when the petitioner signed the AOP The court then directed that a voir dire of the respondent be conducted and, at the conclusion of the voir dire, the court found that the respondent did not admit that there was a mistake. Thus, rather than accepting the parties’ stipulation, the court proceeded with the hearing.

The petitioner testified that the parties ended their relationship prior to August 2009, but resumed having sexual relations from November to December 2009, at which time the respon*952dent informed him that she was pregnant and assured him that the child was his. The petitioner also testified that, when he went to drive the respondent and child to their home from the hospital, the respondent told him that the hospital would not release the baby without the AOP being signed and she handed him the AOP to sign. He further testified that, even though he expressed doubts about the paternity of the child, the respondent stated that he would be able to have a paternity test whenever he wanted if he discovered any reason to doubt the child’s paternity.

The petitioner testified that he was not sure whether he was the respondent’s only sexual partner during the time that they were together, but did not believe that he was. He also testified that, in April 2011, coworkers, including one who was his current girlfriend, informed him that the respondent had been involved in a relationship with another man during the relevant time period and that this other man was the father of the subject child.

The petitioner testified that he visited the child only five or six times prior to filing the petition, and that he last saw the child when she was six months old. The respondent testified that the petitioner had no relationship with the child.

In the order appealed from, entered December 7, 2012, the Family Court found that the petitioner did not meet his burden of proving that the AOP was executed under fraud, duress, or material mistake of fact, denied his request to vacate the AOI] determined that the petitioner was estopped from having a court-ordered genetic marker test, and reinstated a prior order of support. The petitioner appeals.

“A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact” *(Matter of Angelo A.R. v Tenisha N.W.,*108 AD3d 560, 560 [2013]; *see*Family Ct Act § 516-a [b] [ii]; *Matter of Oscar X.F. v Ileana R.H.,*107 AD3d 795, 796 [2013]; *Matter of Derrick H. v Martha J.,*82 AD3d 1236, 1237 [2011]). “If the petitioner satifies this burden, ‘the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interest, from challenging paternity’ ” *(Matter of Oscar X.F. v Ileana R.H.,*107 AD3d at 796, quoting *Matter of Derrick H. v Martha J.,*82 AD3d at 1237; *see*Family Ct Act § 516-a [b] [ii]; *Matter of Angelo A.R. v Tenisha N.W.,*108 AD3d 560 [2013]).

Contrary to the contention of the petitioner and the attorney for the child, the Family Court did not err in finding that a *953hearing on the issue of whether there was a material mistake of fact was necessary, since the court’s questioning of the respondent demonstrated that she did not agree that the petitioner had signed the AOP under the mistaken belief that he was the subject child’s biological father. Since the respondent’s position throughout the proceedings was that the petitioner was the child’s father, a hearing on that issue was proper despite the proposed stipulation with respect to that issue.

However, the petitioner met his initial burden of establishing that the AOP was signed by reason of material mistake of fact. “A party seeking paternity testing under the Family C[our]t Act need not provide factual support for the allegations of paternity or nonpaternity; he or she need only articulate some basis for them” *(Matter of Gutierrez v Gutierrez-Delgado,*33 AD3d 1133, 1134 [2006]; *see Prowda v Wilner,*217 AD2d 287, 289 [1995]). Although the dissent correctly notes that neither *Gutierrez*nor *Prowda*involved proceedings to vacate an AOP, there is no language in either case to suggest that the burden of proof requirements articulated in those cases would be inappropriate to apply with respect to this proceeding, which ultimately addresses the binding effect of the AOP on the petitioner and not, as suggested by our dissenting colleagues, the actual paternity of the child.

Here, the petitioner testified that he signed the AOP because, during the relevant time period, he and the respondent were having sexual relations and the respondent represented that he was the biological father. He also testified that it was only after he executed the AOP that he learned from coworkers that another man may be the child’s actual biological father, causing him to question his paternity. The petitioner’s testimony was sufficient pursuant to Family Court Act § 516-a (b) (ii) to establish a material mistake of fact *(see Matter of Derrick H. v Martha J.,*82 AD3d at 1237-1238).

Further, in light of the Family Court’s finding that the petitioner did not meet his initial burden of proof, no hearing was held on the matter of the child’s best interests. However, since it is undisputed that the parties were never married to each other and did not live together at any time during the child’s life, the petitioner had only visited with the child approximately five or six times before visitation ceased altogether when the child was less than eight months old, and the respondent testified that the petitioner had no relationship with the child, it would not be appropriate to apply the doctrine of equitable estoppel to preclude the ordering of genetic marker or DNA tests for determination of the child’s paternity. Under *954these circumstances, there is no evidence that the child “would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being if this proceeding were permitted to go forward” *(Matter of Derrick H. v Martha J.,*82 AD3d at 1239 [internal quotation marks omitted]; *see*Family Ct Act § 516-a [b] [ii]; *Matter of Juanita A. v Kenneth Mark N.,*15 NY3d 1, 5 [2010]; *Matter of Shondel J. v Mark D.,*7 NY3d 320, 326 [2006]).

In light of our determination, we need not address the parties’ remaining contentions.

Accordingly, we reverse the order appealed from and remit the matter to the Family Court, Westchester County, for a determination of the child’s paternity in accordance with Family Court Act § 516-a (b) (ii). Austin, Roman and Miller, JJ., concur.

Hall, J.,

dissents, and votes to affirm the order appealed from, with the following memorandum, in which Angiolillo, J.R, concurs: I respectfully dissent, and vote to affirm the order appealed from.

Family Court Act § 516-a (b) (ii) provides, in relevant part, that “[a]fter the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity [hereinafter AOP] in court by alleging and proving fraud, duress, or material mistake of fact.” The statute further provides that “[i]f the petitioner proves to the court that the [AOP] was signed under fraud, duress, or due to a material mistake of fact, the court shall order genetic marker tests or DNA tests for the determination of the child’s paternity” (Family Ct Act § 516-a [b] [ii]). Thus, under the statute, fraud, duress, or material mistake of fact must be proven as a prerequisite to a request for a DNA or genetic marker test in a proceeding to vacate an AOP more than 60 days after its execution *(see*Family Ct Act § 516-a [b] [ii]).

I agree with the majority’s determination that the Family Court properly conducted a hearing in this matter. However, in my view, the Family Court also properly found that the petitioner failed to satisfy his burden of proving that he executed the AOP based upon a material mistake of fact. The petitioner testified that, during the relevant time period, he had a casual sexual relationship with the respondent, who told him that she was involved in sexual relationships with other people. When the petitioner learned of the respondent’s pregnancy, he asked, “[i]s the child mine[?],” and the respondent assured him that the child was his. After signing the AOP, the petitioner heard from coworkers that another man may be the biological father of the child. In contrast, the respondent testified that, at *955the time the child was conceived, she was not having a sexual relationship with anyone but the petitioner *(cf. Matter of Oscar X.F. v Ileana R.H.,*107 AD3d 795, 796 [2013]; *Matter of Derrick H. v Martha J.,*82 AD3d 1236, 1238 [2011]). The Family Court found the petitioner to be “less than credible,” but did not find the respondent to be “lacking any credibility.” In addition, the Family Court did not credit the petitioner’s testimony as to the information he received from his coworkers, one of whom was his current girlfriend. Since these credibility findings are not clearly unsupported by the record, they are entitled to considerable deference *(see Matter of Andrew B. [Deborah B.],*73 AD3d 1036, 1036 [2010]; *cf. Matter of Derrick H. v Martha J.,*82 AD3d at 1238).

I do not read the decisions of the Appellate Division, Third Department, in *Matter of Gutierrez v Gutierrez-Delgado*(33 AD3d 1133 [2006]) and *Prowda v Wilner*(217 AD2d 287 [1995]) as standing for the proposition that a party seeking to vacate an AOP more than 60 days after its execution need only articulate some basis, or a nonfrivolous controversy, as to paternity in order to vacate the AOP and obtain DNA or genetic marker testing. Indeed, an AOP was not even at issue in those cases. In *Gutierrez,*the respondent sought an order directing the release of the results of private DNA testing that had already been conducted. No party was seeking to vacate an AOP more than 60 days after its execution and, thus, Family Court Act § 516-a (b) (ii) was not at issue in the case. In *Prowda,*a divorce action, the defendant moved for a blood-grouping test pursuant to Family Court Act § 418 (a) to determine the subject child’s paternity. The Third Department addressed the issue of whether the requested testing should be ordered in light of the presumption of legitimacy of a child born to a married woman. In its decision, the Third Department never mentioned Family Court Act § 516-a (b) (ii), or the standard of proof required to vacate an AOP more than 60 days after its execution. According to the plain language of Family Court Act § 516-a (b) (ii), the statute requires proof of fraud, duress, or material mistake of fact, not the mere articulation of some basis for nonpaternity. If the Legislature had intended the mere articulation of some basis for nonpaternity to be sufficient to vacate an AOP more than 60 days after its execution, it would not have required a petitioner to prove fraud, duress, or material mistake of fact in order to achieve that end.

Here, the petitioner was required to prove that he executed the AOP based on a material mistake of fact. This he failed to do. According to the petitioner’s own testimony, prior to signing *956the AOF] he was told by the respondent that she had other sexual partners during the relevant time period. Thus, the petitioner failed to prove that he signed the AOP under the mistaken belief that he was the only possible biological father of the child *(cf. Matter of Oscar X.F. v Ileana R.H.,*107 AD3d at 796; *Matter of Derrick H. v Martha J.,*82 AD3d at 1237-1238). While the petitioner may have raised a nonfrivolous controversy as to paternity, this was insufficient to satisfy the petitioner’s burden of proof under Family Court Act § 516-a (b) (ii).

Since the petitioner failed to prove that his execution of the AOP was based on “fraud, duress, or material mistake of fact” (Family Ct Act § 516-a [b] [ii]), the Family Court properly denied his request for DNA or genetic marker testing *(see Matter of Miskiewicz v Griffin,*41 AD3d 853, 854 [2007]; *Matter of Westchester County Dept. of Social Servs. v Robert W.R.,*25 AD3d 62, 70 [2005]; *see also Matter of Demetrius H. v Mikhaila C.M.,*35 AD3d 1215, 1216 [2006]). Accordingly, in my view, the order appealed from should be affirmed.