A divided Brooklyn appellate panel has reinstated a man’s petition to vacate his acknowledgment of paternity of a 3-year-old girl, reversing a Family Court ruling that denied his request.

In its Dec. 26 decision, the Appellate Division, Second Department, split 3-2 over the burden of proof required to challenge an acknowledgment of paternity after the 60-day limit imposed by the Family Court Act for seeking paternity testing must merely “articulate some basis” for paternity or nonpaternity, while the dissent argued state law may require a higher level of proof.

The statute at issue, Family Court Act § 516-a(b)(ii), states that if a challenge to an acknowledgment of paternity is filed 60 days after it is signed, the court may order genetic marker or DNA tests to determine paternity only “if the petitioner proves to the court that the acknowledgment of paternity was signed under fraud, duress, or due to a material mistake of fact.” It does not specify the level of proof required.

In the majority opinion in the Matter of Sidney W. v. Chanta J., P-16977-11, Justices Leonard Austin (See Profile), Sheri Roman (See Profile) and Robert Miller (See Profile) pointed to 2012 testimony the man gave in Westchester County Family Court. There he told Judge Janet Malone (See Profile) his coworkers informed him another man may have been the girl’s biological father, causing him to question his paternity.

The justices cited two other appellate cases, Matter of Gutierrez v. Gutierrez-Delgado (33 AD3d 1133) and Prowda v. Wilner (217 AD2d 287), where courts found parties seeking paternity testing “need not provide factual support for the allegations of paternity or nonpaternity; he or she need only articulate some basis.” Therefore, they wrote, “the petitioner’s testimony was sufficient pursuant to Family Court Act § 516-a(b)(ii) to establish a material mistake of fact.”

But in a dissent written by Justice L. Priscilla Hall (See Profile) in which Justice Daniel Angiolillo (See Profile) concurred, she affirmed the Family Court’s decision that the man “failed to satisfy his burden” of proof. They also said the Gutierrez and Prowda decisions did not apply because neither dealt with an acknowledgment of paternity.

The parties’ relationship began in 2007, when they were coworkers, and continued for the next three years. The woman became pregnant in December 2009 and told the man he was the father.

He was present in the delivery room for the girl’s birth in September 2010 and brought the mother and newborn home from the hospital. That day he signed the acknowledgment of paternity. Over the next six months, he saw the baby about five times before ceasing visitation.

In December 2011, the man filed a petition to vacate the acknowledgement, alleging there had been a material mistake of fact because the woman had been in an intimate relationship with another man around the time she became pregnant.

At the hearing before Malone, the woman would not admit there had been a mistake.

The man testified that, at the child’s birth, the woman had told him the baby could not be released from the hospital until he signed the acknowledgement of paternity. He also testified the woman told him he could get a paternity test if he ever doubted he was the father.

But Malone ruled in a December 2012 order that the man did not meet his burden of proving he signed the acknowledgment under fraud, duress or material mistake of fact. She denied the request to vacate the document and barred him from having a paternity test.

In addition, Malone found the man’s claims to be “less than credible” but did not find the woman to be “lacking any credibility,” a fact the dissenting justices underscored in their Dec. 26 decision.

The majority disagreed with Malone’s finding that the doctrine of estoppel precluded the ordering of genetic testing. Because the man “had only visited with the child approximately five or six times before visitation ceased altogether when the child was less than eight months old…there is no evidence” the child would suffer any emotional harm if the paternity test went forward.

Jerold Rotbard, an attorney with Harold, Salant, Strassfield & Spielberg in White Plains who represented the father, said he was “very happy” with the panel’s decision.

“The winner here is the child,” Rotbard said. “This was a case where the child was still an infant. There’s an opportunity for her to know who her real father is before she fosters a relationship with the wrong person.”

Goetz Vilsaint, a Bronx lawyer representing the mother, could not be reached for comment. Daniel Molinoff, the attorney for the child, also could not be reached for comment.