Albany County Dept. of Social Services on Behalf of Judy T. v. John T.
| Decision Date | 27 September 1996 |
| Citation | 650 N.Y.S.2d 923,170 Misc.2d 506 |
| Parties | ALBANY COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of JUDY T., Petitioner, v. JOHN T., Respondent. |
| Court | New York Family Court |
Caroline Guresz (Kevin L. O'Brien, of counsel), for petitioner.
Daniel R. Fruitbine, for respondent.
In this paternity proceeding the Petitioner ("DSS") moves for summary judgment on its paternity petition on the grounds that there exists no triable issue of fact. The issue to be first determined is whether summary judgment, as a procedural device, is available in a paternity action.
The paternity petition filed by DSS alleges that the Respondent is the Father of Baby "T." Upon request of Respondent, two separate blood tests were conducted. The first, an HLA test, resulted in the finding of probability of paternity of 99.93%. The second, a DNA blood test, resulted in the finding of a probability of paternity of 99.99%.
Based on these blood tests, the affidavit of the moving attorney, and the Mother's affidavit, the Mother now moves for summary judgment. Also submitted in support of the motion is the affidavit of the Mother's ex-husband. The end of the Mother's marriage overlapped the possible time of conception by approximately 30 days. The ex-husband, in his affidavit, established non-access.
In opposition to the motion Respondent raises only two issues. The first is that the Mother's ex-husband was not made party to the proceeding. The second is that the presumption of legitimacy has not been overcome because the blood tests do not conclusively establish paternity. Respondent makes no fact based claim that the ex-husband is the Father. Neither does he allege that the two blood tests were administered or interpreted improperly. Finally, Respondent, in his responding papers, does not specifically deny paternity.
There is no express provision for a summary judgment motion in the Family Court Act. When the Family Court Act is silent on a procedural question "the provisions of the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved" (see, FCA § 165; Matter of Suffolk County Dept. of Social Servs. [Michael V.] v. James M., 83 N.Y.2d 178, 182, 608 N.Y.S.2d 940, 630 N.E.2d 636). In Michael V., the Court of Appeals specifically approved the use of a summary judgment motion in a Family Court Act Article 10 proceeding. In that case, the Court found that a criminal conviction for sodomy collaterally estopped the Respondent from contesting an abuse petition in Family Court. Summary judgment was granted based on the certificate of conviction. Nothing in Michael V. argues for restricting the use of summary judgment to the particular situation raised in that case. Accordingly, a motion for summary judgment is available in a paternity action to the extent it is "appropriate" to the nature of that particular proceeding.
A procedure contained in the CPLR is appropriate and, hence, importable into the Family Court Act, if it assists in defining "the conditions on which the Family Court may intervene in the life of a child, parent and spouse" (FCA § 141). In most cases, the appropriateness issue can be resolved by answering the question of whether there is any reason why a particular CPLR procedure ought not be used. For the reasons given below, the Court finds that there is no reason why summary judgment is not appropriate in a paternity proceeding.
The first question is whether summary judgment is inappropriate in a paternity action because of the heightened standard of proof. In a Family Court Act Article 5 proceeding, proof of paternity must be shown by clear and convincing evidence (see, Matter of Ximiecik [Tammie Q.Q.] v. Mark R.R., 86 A.D.2d 953, 448 N.Y.S.2d 587). A summary judgment motion will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." (CPLR 3212[b] ). Underlying this rule is the notion that summary judgment "does not deny the parties a trial; it merely ascertains that there is nothing to try" (Siegel, New York Practice, § 278, at 407 [2d ed] ).
Because a summary judgment motion determines that there are no material facts in dispute, the quantum of proof required to prove the underlying action is irrelevant. For example, there is no theoretical or logical reason why a summary judgment motion could not be applied to a case that requires proof beyond a reasonable doubt. For obvious constitutional and public policy reasons, summary judgment may not be used to resolve a criminal case. However, these constitutional and public policy considerations have not been extended to civil practice. 1 The Court's task on a summary judgment motion is, of course, issue finding. While this search may be more exacting where the underlying action's standard of proof is higher than the customary preponderance of the evidence, there is no inherent reason why a motion for summary judgment should not be available in a proceeding where the standard of proof is clear and convincing evidence. Accordingly, there is nothing about the higher standard of proof required in a paternity proceeding which makes a summary judgment motion inappropriate.
The second issue raised by the Respondent is that the presumption of legitimacy cannot be rebutted in a summary judgment motion. Of course, the classic statement on the legitimacy presumption is that of Chief Judge Cardozo in Matter of Findlay, 253 N.Y. 1, 170 N.E. 471: "Potent, indeed, the presumption is, one of the strongest and most persuasive known to the law * * * and yet subject to the sway of reason" (supra, at 7, 170 N.E. 471, citations omitted). Cardozo noted that English law once allowed a "rule of the four seas"; namely, that if a husband was within the four seas of England during the period of gestation, paternity could not be questioned. While the rule of the four seas gave way to other more legalistic formulations of the quantum of proof required in paternity actions, such as "strong and irresistible", "beyond all reasonable doubt" and "clear and convincing", Cardozo noted that they meant only this: "the presumption will not fail unless common sense and reason are outraged by a holding that it abides" (supra, at p. 8, 170 N.E. 471). By making the presumption of legitimacy "one of the strongest and most persuasive known to the law," society was obviously advancing some very important public policy...
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