Carmen I v. Robert K
| Decision Date | 28 May 1981 |
| Citation | 109 Misc.2d 259,439 N.Y.S.2d 801 |
| Court | New York Family Court |
| Parties | In the Matter of the Paternity Petition of the Commissioner of Social Services of the City of New York as Assignee of: CARMEN I, Petitioner, v. ROBERT K, Respondent. |
Allen G. Schwartz, Corp. Counsel by Diane J. Morgenroth, Asst. Corp. Counsel, Brooklyn, for petitioner.
Samuels & Grossman, P.C. by Michael F. Grossman, New York City, for respondent.
This is a motion by Petitioner pursuant to Family Court Act § 532, Laws of 1981, Chapter 9, effective March 2, 1981. Petitioner seeks an order directing the parties in this paternity proceeding to submit to the Human Leucocyte Antigen blood tissue test (hereafter HLA). The recent amendment permits the court to receive HLA test results in evidence to aid in the determination of whether or not the alleged father is or is not the father. Prior to this amendment the results of a blood-grouping test could be received in evidence only if the alleged father was excluded. See, Family Court Act § 532, Laws of 1976, Chapter 665. This amendment acts to affect the admissibility of blood test results as evidence in a paternity case to reflect the higher level of accuracy scientific progress has achieved in blood testing.
The court notes that Respondent frames his opposing papers as if Petitioner requested the HLA blood test pursuant to Family Court Act § 418, which is applicable to blood tests in support proceedings, while Petitioner has in fact made application for the test pursuant to Family Court Act § 532 which relates to blood tests in paternity proceedings, such as the case at bar. The court will treat Respondent's opposing papers as if he were responding to Petitioner's motion as it is actually written.
In opposition to Petitioner's motion, Respondent asserts that the application of this amendment to him in a proceeding initiated prior to the amendment's effective date would fall within the prohibition against ex post facto laws. The doctrine of ex post facto, however, applies only to criminal cases, penal statutes and vested rights. Although it is true that paternity proceedings have quasi-criminal antecedents as they were tried in criminal courts in this city prior to 1962, they are now civil proceedings and are not criminal or even quasi-criminal in nature. In re Commissioner of Social Services of the City of New York, 75 Misc.2d 971, 348 N.Y.S.2d 831 (Fam.Ct., Bronx Co.1973). As no vested rights of Respondent would be violated by the ordering of an HLA test in this civil case and no penal statutes are involved, the application of the amendment to this Respondent would not violate the rule against ex post facto laws.
In this civil action, Respondent might have more appropriately argued that the newly enacted amendment was only to be applied prospectively and not to pending proceedings. As a general rule, absent clear expression of legislative intent to the contrary, amendatory statutes are to be given prospective application only. Sessa v. State, 63 A.D.2d 334, 408 N.Y.S.2d 547, aff'd 47 N.Y.2d 976, 419 N.Y.S.2d 972, 393 N.E.2d 1044 (1979). However, there is an exception to this general rule when the amendment is to a procedural statute. Such an amendment applies to pending proceedings. Judge Nanette Dembitz has recently spoken to this point in relation to the HLA amendment in Matter of Jane L. (Rodney B.), 108 Misc.2d 709, 438 N.Y.S.2d 726 (Fam.Ct.):
The objection that the HLA amendment should not apply in a trial nearing completion at the time of its enactment must also be rejected. The principle is well established that "the procedure in an action is governed by the law regulating it at the time any question of procedure arises....the legislature may change the practice of the court and....the change...
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