Ontario County Department of Social Services v. Kenneth L. S.

Appeal unanimously dismissed without costs. Memorandum: An order of filiation is not appealable as of right where, as here, support is sought in the paternity petition (see, Matter of Jane PP. v Paul QQ., 64 NY2d 15, 17). Petitioner sought an order of support and decision on that issue was reserved by Family Court in the order of filiation. Were we to reach the merits of the appeal, we would nonetheless affirm. The court’s determination of paternity is supported by clear and convincing evidence. The testimony that petitioner had sexual relations exclusively with respondent during the critical period, together with the results of the DNA test indicating a 99.9% probability that respondent is the child’s father, provides clear and convincing evidence of respondent’s paternity (see, Matter of Julie W. v Adam S., 222 AD2d 1012; see generally, Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996). (Appeal from Order of Ontario County Family Court, Harvey, J.—Paternity.) Present—Denman, P. J., Pine, Balio, Boehm and Fallon, JJ.