Christine D. v. Timothy N.

1038 Appeal from an order of the Family Court, Erie County (Rosalie Bailey, J.), entered February 4, 2004 in a proceeding pursuant to article 8 of the Family Court Act. The order granted respondent’s motion to dismiss the petition based on lack of jurisdiction. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Family Court, Erie County, for further proceedings on the petition. Memorandum: In this proceeding commenced pursuant to Family Court Act article 8, Family Court erred in granting respondent’s motion to dismiss the petition based on lack of jurisdiction. The court had jurisdiction over respondent based on the allegation in the petition that the parties had a child in common (see § 812 [1] [d]). The fact that petitioner had commenced a paternity proceeding that was pending at the time of this proceeding did not divest the court of jurisdiction (see Matter of Phillips v Laland, 4 AD3d 529 [2004], lv denied 3 NY3d 609 [2004]; Matter of Jerri D. v Jarrett H., 299 AD2d 863, 864 [2002]). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.