Carl Henry P. v. Tiwiana L.

• Decision Date: 29 March 2011
• Citation: 919 N.Y.S.2d 384,82 A.D.3d 1245,2011 N.Y. Slip Op. 02681
• Parties: In the Matter of Carl HENRY P. (Anonymous), petitioner-respondent, v. TIWIANA L. (Anonymous), appellant; Suffolk County Department of Social Services, respondent-respondent. (Proceeding No. 1) In the Matter of Tiwiana L. (Anonymous), appellant, v. Carl Henry P. (Anonymous), et al., respondents-respondents. (Proceeding No. 2)
• Court: New York Supreme Court

82 A.D.3d 1245

919 N.Y.S.2d 384

In the Matter of Carl HENRY P. (Anonymous), petitioner-respondent,

v.TIWIANA L. (Anonymous), appellant; Suffolk County Department of Social Services, respondent-respondent. (Proceeding No. 1)

In the Matter of Tiwiana L. (Anonymous), appellant,

v.Carl Henry P. (Anonymous), et al., respondents-respondents. (Proceeding No. 2)

Supreme Court, Appellate Division, Second Department, New York.

March 29, 2011.

Del Atwell, East Hampton, N.Y., for appellant.

Christine Malafi, Central Islip, N.Y. (Jennifer L. Basile of counsel), for respondent—respondent Suffolk County Department of Social Services.

Lynn Poster–Zimmerman, P.C., Huntington, N.Y., attorney for the children.

In related paternity proceedings pursuant to Family Court Act article 5, the mother appeals from an order of the Family Court, Suffolk County (Quinn, J.), dated April 14, 2010, which, without a hearing, in effect, granted the motion of the Suffolk County Department of Social Services pursuant to CPLR 3211(a)(7) to dismiss the petitions.

ORDERED that the order is affirmed, without costs or disbursements.

In these related paternity proceedings, the Family Court granted the motion of the Suffolk County Department of Social Services (hereinafter the DSS) for leave to intervene on the ground that the children were receiving public assistance. The Family Court then granted the motion of the DSS pursuant to CPLR 3211(a)(7) to dismiss the petitions.

“A child born during marriage is presumed to be the biological product of the marriage and this presumption has been described as ‘one of the strongest and most persuasive known to the law’ ” (Matter of Barbara S. v. Michael I., 24 A.D.3d 451, 452, 805 N.Y.S.2d 425, quoting David L. v. Cindy Pearl L., 208 A.D.2d 502, 503, 617 N.Y.S.2d 57 [internal quotation marks omitted] ). Moreover, “the doctrine of equitable estoppel is applicable in paternity proceedings and is invoked to preserve the status of legitimacy for the child” (Matter of Alberto T. v. Tammy D., 274 A.D.2d 587, 587, 712 N.Y.S.2d 392).

Here, the subject children, all of whom were conceived and born during the marriage, are presumed to be the legitimate children of the mother and her husband ( seeDomestic Relations Law § 240[1] ). Moreover, under the particular circumstances of this case, the Family Court properly applied the doctrine of equitable estoppel and concluded, without a hearing, in effect, that it was in the best interest of the children...