Julie W. v. Adam S. , 636 N.Y.S.2d 526 ( 1995 )

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: This appeal from a final order of support brings up for review the order of filiation (see, CPLR 5501 [a]; Family Ct Act § 1118; Matter of Deborah A. D. v David E. C., 217 AD2d 1005). The record supports the determination of Family Court that petitioner met her burden of proving respondent’s paternity by clear and convincing evidence (see, Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137, 141-142). The testimony of petitioner that she had sexual relations with respondent, and no one else, in December 1991, as well as the results of a blood test indicating a 99.63% probability that respondent is the child’s father, provide clear and convincing evidence of respondent’s paternity (see, Matter of Deborah A. D. v David E. C., supra; Matter of Niagara County Dept, of Social Servs. [Kimmie W.J v Randy M., 206 AD2d 878, 878-879).

Respondent does not argue on appeal that the court erred in requiring him to pay 50% of the child’s uninsured health care expenses, and we, therefore, do not address that portion of the court’s order (see, Ciesinski v Town of Aurora, 202 AD2d 984). The court erred, however, in directing respondent to pay child support in the amount of $25 per month. The Hearing Examiner’s findings of fact establish that the amount was improperly based upon the minimum requirement of the Child Support Standards Act (CSSA) rather than upon application of the CSSA guidelines to respondent’s income (see, Matter of Rose v Moody, 83 NY2d 65, cert denied sub nom. Attorney Gen. of N. Y. v Moody, — US —, 114 S Ct 1837; Matter of Deborah A. D. v David E. C, supra). The record is inadequate for us to determine the appropriate level of child support that respondent should pay. Therefore, we remit the matter to Erie County Family Court for a hearing to determine the appropriate level of child support (see, Matter of Deborah A. D. v David E. C., supra; Matter of Reaves v Abdullah [appeal No. 2], 197 AD2d 911). (Appeal from Order of Erie County Family Court, Szczur, J. — Child Support.) Present — Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.