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IN RE CECIL R., pet-ap, v. RACHEL A., res-res

9038. IN RE CECIL R., pet-ap, v. RACHEL A., res-res — Michael S. Bromberg, Sag harbor, for ap — LAW OFFICE OF CABELLY & CALDERON, JAMAICA (LEWIS S. CALDERON OF COUNSEL), ATTORNEY FOR THE CHILD.—Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about July 26, 2011, which, after a hearing, denied petitioner's motion to vacate an order dismissing his paternity petition on default, unanimously affirmed, without costs.

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9038. IN RE CECIL R., pet-ap, v. RACHEL A., res-res — Michael S. Bromberg, Sag harbor, for ap — LAW OFFICE OF CABELLY & CALDERON, JAMAICA (LEWIS S. CALDERON OF COUNSEL), ATTORNEY FOR THE CHILD.—Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about July 26, 2011, which, after a hearing, denied petitioner’s motion to vacate an order dismissing his paternity petition on default, unanimously affirmed, without costs.

While petitioner demonstrated a reasonable excuse for his default in appearing, he failed to show a meritorious claim of paternity (see Matter of Commissioner of Social Servs. v. Philip De G., 59 NY2d 137, 141-142 [1983]; Matter of Jason E. v. Tania G., 69 AD3d 518, 519 [1st Dept 2010]). The court improperly relied on a purported DNA test that was not in the record, but its determination is otherwise supported by the record. Petitioner testified that, although he knew of the child’s birth within the year after she was born, he did not believe he was the father because of the mother’s lifestyle. This testimony tends to undermine petitioner’s claim, which he was required to prove by clear and convincing evidence (see Jane PP. v. Paul QQ., 65 NY2d 994, 996 [1985] ["Where there is proof in the record that a man other than the respondent has had intercourse with the petitioner during the critical time period, the evidence is insufficient as a matter of law"]).

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