Pablo G. v. Oneida County Department of Social Services

Appeal from an order of the Family Court, Oneida County (Frank S. Cook, J.), entered December 16, 2005 in a proceeding pursuant to Family Court Act article 5. The order denied and dismissed the motion of petitioner to vacate an order of filiation entered upon his default. 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 granted, the order dated February 14, 2005 [1220] is vacated and the matter is remitted to Family Court, Oneida County, for further proceedings on the petition. Memorandum: Petitioner, an inmate at a correctional facility, appeals from an order in a proceeding pursuant to Family Court Act article 5 that denied and dismissed his motion to vacate an order of filiation entered upon his default. Based on the record before us, we conclude that petitioner met his burden of establishing a reasonable excuse for the default by averring that he did not refuse to be produced for the court appearance but failed to appear because the correctional facility had no record of the proceeding (see CPLR 5015 [a] [1]). Furthermore, in requesting that a genetic marker test be ordered, petitioner is thereby deemed to assert the defense that he is not the father at issue in this proceeding and thus we conclude that petitioner made the requisite showing of a meritorious defense to the proceeding (see generally Matter of Precyse T., 13 AD3d 1113, 1113-1114 [2004]). Present—Gorski, J.P, Smith, Lunn, Peradotto and Pine, JJ.