Erie County Department of Social Services v. Theodore D.

Order unanimously affirmed without costs. Memorandum: Respondent appeals from an order of Family Court adjudicating him the father of a female child born on November 26, 1991. Respondent also appeals from the subsequent order of a Hearing Examiner directing him to pay child support of $25 per month. We note that respondent’s notice of appeal was filed before the order of the Hearing Examiner was entered and, therefore, is premature (see, CPLR 5520 [c]). In any event, no appeal lies from the order of the Hearing Examiner because no objections were filed and the order was not reviewed by a judge (see, Family Ct Act § 439 [e]; Matter of Erie County Dept. of Social Servs. [Deborah A. R.[ v Felix M. C. [appeal No. 2], 209 AD2d 1031; Matter of Niagara County Dept. of Social Servs. [Kimmie W.[ v Randy M., 206 AD2d 878). Thus, the appeal from that order is dismissed. The order of filiation is not appealable as of right (see, Family Ct Act § 1112 [a]; Matter of Jane PP. v Paul QQ., 64 NY2d 15, 17). We deem the notice of appeal from the order of filiation to be an application for leave to appeal from that order, and, in the exercise of our discretion, grant leave to appeal (see, Family Ct Act § 1112 [a]; Matter of Niagara County Dept. of Social Servs. [Kimmie W.J v Randy M., supra, at 878; Matter of Erie County Dept. of Social Servs. [Holmes] v Abdallah [appeal No. 2], 187 AD2d 967). There is no basis in the record to disturb the determination that petitioner met its burden of establishing respondent’s 998 paternity by clear and convincing evidence (see, Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996) and of rebutting the presumption of legitimacy by clear and convincing evidence (see, Matter of Cheryl A. B. v Michael Anthony D., 209 AD2d 966). "The greatest deference should be given to the decision of the hearing Judge who is in the best position to assess the credibility of the witnesses and the evidence proffered” (Matter of McCarthy v Braiman, 125 AD2d 572). (Appeal from Order of Erie County Family Court, Trost, J.H.O.—Paternity.) Present—Green, J. P., Lawton, Wesley, Davis and Boehm, JJ.