
    In the Matter of Commissioner of Social Services, Cattaraugus County, on Behalf of Lisa Werner, Respondent, v Joseph Evans, Appellant.
    [744 NYS2d 730]
   —Appeal from an order of Family Court, Cattaraugus County (Nenno, J.), entered November 3, 2000, in a proceeding under article 4 of the Family Court Act which denied respondent’s objections to the order of the Hearing Examiner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the objections are granted, the order of the Hearing Examiner is vacated and the petition is denied.

Memorandum: Family Court erred in denying respondent’s objections to the order of the Hearing Examiner. Petitioner commenced this proceeding seeking reimbursement for birth-related expenses it paid on behalf of respondent’s child. The liability of respondent, an unwed father, for those expenses “depends upon his ability to pay at the time of the birth,” when the expenses were incurred, and petitioner failed to establish that respondent had the means to pay those expenses at that time (Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d 451, 458). Contrary to petitioner’s contention, there is no requirement that respondent be a Medicaid recipient to avoid such liability. Present—Pigott, Jr., P.J., Hurlbutt, Kehoe, Burns and Gorski, JJ.  