Mary W. v. Kenneth L.

—Order unanimously reversed on the law without costs, motion denied and petition reinstated. Mem*990orandum: Family Court erred in granting respondent’s motion to dismiss the paternity petition as barred by res judicata. In 1990 Erie County Department of Social Services (DSS) filed a paternity petition that was thereafter dismissed on the ground that DSS failed to meet its burden of proof. This Court affirmed the order dismissing that petition (Matter of Commissioner of Social Servs. [Mary W.] v Kenneth L., 188 AD2d 1080). Although petitioner herein (mother) was a witness in that paternity…