Carol B. v. Felder R. J.
| Decision Date | 09 June 1978 |
| Citation | 406 N.Y.S.2d 668,94 Misc.2d 1015 |
| Parties | In the Matter of * CAROL B., Petitioner, v. FELDER R. J., Respondent. |
| Court | New York City Court |
Petitioner moves the Court for (1) an order vacating a prior dismissal and restoring the instant paternity case to this Court's trial calendar, and (2) an order requiring the respondent to submit to a second blood grouping test.
On December 19, 1973, petitioner Carol B. commenced this paternity action against respondent Felder R. J. with respect to the child, Tara, born to petitioner on March 4, 1973.
Thereafter, at respondent's request, a blood grouping test was ordered by the Court on January 2, 1974 and was subsequently administered by Dr. Lester M. Fox. The results of the test, as analyzed by Dr. Fox, excluded respondent from being the father of the child.
Petitioner, unsatisfied with the results of the test, requested that the Court order the respondent to submit to a second blood test. Judge Pagnucco, then presiding, denied petitioner's application for a second test, stating:
Bahna v. James sub. nom. Brian v. Johns, 78 Misc.2d 219, 358 N.Y.S.2d 593 (N.Y. Co. Fam.Ct., 1974).
Judge Pagnucco further ordered that the action proceed to trial, whereupon respondent would produce Dr. Fox as a witness so that petitioner could cross-examine him concerning the nature and quality of the test methodology employed as well as the accuracy of the analysis and conclusion proffered.
Following more than three years of adjournments without commencement of trial, and after it became evident that illness on the part of petitioner's attorney would further delay the onset of trial, the instant petition was dismissed without prejudice on August 30, 1977.
On May 1, 1978, petitioner submitted the instant motion for (1) an order vacating the prior dismissal and restoring the case to the Court's trial calendar, and (2) an order requiring respondent to submit to a second blood grouping test pursuant to the 1976 amended provisions of F.C.A. § 532.
On May 25, 1978, respondent submitted answering papers opposing both parts of petitioner's motion.
Respondent opposes the petitioner's motion to vacate the prior dismissal and recalendar the instant case solely on the grounds that the motion papers are defective in that (1) the petitioner's only proper recourse is to proceed by service of a new summons and petition, and (2) the motion, even if procedurally proper, does not establish sufficient reason for this Court to vacate the prior dismissal.
The Court sees no reason, absent such limiting terms in the prior dismissal, to require respondent to proceed by way of a second summons and petition. Moreover, while the Court is aware of the lengthy delay in this case occasioned by numerous adjournments, it is noted that respondent's counsel has acquiesced to these adjournments. Under these circumstances, the unfortunate occurrence of illness on the part of petitioner's former attorney (which precipitated the dismissal) should not act to deprive petitioner of her day in court now that she has secured new counsel and states her readiness to proceed immediately to trial.
Accordingly, after due consideration of respondent's articulated basis for resisting that portion of petitioner's motion which seeks to vacate the prior dismissal and recalendar this case, and notwithstanding any affirmative defense which may have been available if raised by respondent, it is the judgment of the Court that this portion of the motion be granted.
The second portion of petitioner's motion seeks a court order directing respondent to submit to a second blood grouping test. It is the judgment of the Court that this part of petitioner's motion also be granted.
Judge Pagnucco's 1974 decision denying a second blood test was premised upon the then existing wording of F.C.A. § 532 which read, in pertinent part:
"The court, on motion of the respondent, shall order the mother, her child and the respondent to submit to one or more blood grouping tests by a duly qualified physician . . ." (emphasis added.)
Accordingly, at that time, the Court concluded it lacked the necessary statutory authority to order a...
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Department of Social Services on Behalf of Sandra C. v. Thomas J.S.
...109 Misc.2d 259, 439 N.Y.S.2d 801; Matter of Jane L. v. Rodney B., 108 Misc.2d 709, 438 N.Y.S.2d 726, supra; Matter of Carol B. v. Felder R.J., 94 Misc.2d 1015, 406 N.Y.S.2d 668). With respect to the alleged conflict between sections 531 and 532 of the Family Court Act, the Court of Appeals......
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