Alicia C. v. Evaristo G.

• Decision Date: 04 April 1983
• Citation: 460 N.Y.S.2d 616,93 A.D.2d 820
• Parties: In the Matter of ALICIA C. (Anonymous), o/b/o Zamian C. (Anonymous), Appellant, v. EVARISTO G. (Anonymous) et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 616

460 N.Y.S.2d 616

93 A.D.2d 820

In the Matter of ALICIA C. (Anonymous), o/b/o Zamian C. (Anonymous), Appellant, v. EVARISTO G. (Anonymous) et al., Respondents.

Supreme Court, Appellate Division Second Department.

April 4, 1983.

Tamar Benamy, New York City, for appellant.

Schwartz, Dicker & Gutstein, New York City (Ralph P. Cosentino and Lawrence D. Dicker, New York City, of counsel), for respondent Henry P. (Anonymous).

Before MOLLEN, P.J., and DAMIANI, LAZER and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In a paternity proceeding pursuant to article 5 of the Family Court Act, petitioner appeals, as limited by her brief, from so much of an order of the Family Court, Queens County, dated September 1, 1982, 115 Misc.2d 564, 454 N.Y.S.2d 395, as dismissed the petition against Evaristo G.

Order reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and Evaristo G. is declared to be the father of the infant, Zamian C.

This proceeding was commenced by the maternal grandmother of an infant named Zamian C., on his behalf, to determine which of two men is the father of the child. The natural mother had died prior to the commencement of the proceeding.

At the hearing on the petition, Evaristo G. claimed paternity. He testified that he cohabited and had sexual relations with the mother continuously from the period prior to the infant's conception until approximately one year after the infant's birth on August 12, 1978. His testimony was corroborated by the testimony of his sisters, the maternal grandmother, and a maternal aunt. During the period prior to conception, Evaristo G. and the mother shared a bedroom in the maternal grandmother's apartment. The maternal grandmother, and the maternal aunt who was also living in that apartment, both testified that the mother did not see other men during that period. In August, 1978, the mother signed a form for the child entitled "New York Hospital-Out-Patient Registration Record" which listed Evaristo G. as the father.

After Evaristo G. and the mother separated in August, 1979, she was befriended by Henry P., whose name was, thereafter, listed on the child's birth certificate as the father. Henry P. was made a correspondent in this proceeding, but results of a blood grouping test excluded him from paternity.

At the hearing, Dr. Leon Sussman testified that results of the human leucocyte antigen blood test indicated that there was a 98.5% probability that Evaristo G. was the father of the child. In reaching that determination, Dr. Sussman concluded, based upon Evaristo G.'s appearance, that Evaristo G. was of the Caucasian race....