Nancy Kay B. v. Dennis G.

—Order unanimously reversed on the law without costs, order of Hearing Examiner and order of paternity vacated and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: Respondent appeals from an order of Family Court denying objections to the Hearing Examiner’s order of support. That appeal brings up for review the order of the Hearing Examiner (see, CPLR 5501 [a] [1]) and the prior order of Family Court that adjudged respondent to be the biological father of the child (see, Matter of Jane PP. v Paul QQ., 64 NY2d 15, 18). The court erred in making its adjudication of paternity in this proceeding, commenced pursuant to the Uniform Support of Dependents Law (Domestic Relations Law art 3-A), without requiring the presence of petitioner. Petitioner initiated this proceeding in Wisconsin. The proof submitted by petitioner at the hearing in New York consisted of her petition and bill of particulars and the report of HLA blood grouping test results. Respondent denied paternity and his testimony contradicted the material written statements made by petitioner concerning the single alleged sexual event and the nature of the parties’ relationship. Further, the testimony of respondent’s expert witness questioned the probative value of the probability of paternity conclusion set forth in the HLA test report (see, Matter of Commissioner of Social Servs. [Mary W.] v Kenneth L., 188 AD2d 1080). Under the circumstances, the court should have required the presence of petitioner and should have adjourned the hearing to enable her to attend and be available for cross-examination (see, Domestic Relations Law § 37 [5]; Matter of Diana A. v Gary J. G., 192 AD2d 706, lv denied 82 NY2d 664; cf., Matter of Kyra D. G. v Jeffrey W., 203 AD2d 569). We remit this matter to Family Court for a de novo hearing before a different Judge to be scheduled at a time when petitioner can be present. (Appeal from Order of Erie County Family Court, Rosa, J.—Child Support.) Present— Balio, J. P., Lawton, Wesley, Doerr and Boehm, JJ.