Commissioner of Social Services of Erie County on Behalf of Laura N. v. Stephen H.
| Decision Date | 25 May 1983 |
| Citation | 94 A.D.2d 936,464 N.Y.S.2d 66 |
| Parties | In the Matter of the Application of the COMMISSIONER OF SOCIAL SERVICES OF THE COUNTY OF ERIE on Behalf of LAURA N., Appellant, v. STEPHEN H., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Eugene Pigott, Jr., County Atty. by Richard Usen, Buffalo, for appellant.
Nicholas Zinni, Batavia, for respondent.
Before DILLON, P.J., HANCOCK, CALLAHAN, DENMAN and GREEN, JJ.
Petitioner alleges that respondent Stephen H. is the father of a female child born out-of-wedlock to Laura N. In a sworn affidavit attached to the petition, Laura N., as complaining witness, says that she engaged in sexual intercourse with respondent on several occasions during the period of conception. A motion was made by petitioner to compel respondent to submit to a Human Leucocyte Antigen (HLA) blood tissue test pursuant to section 532 of the Family Court Act. In denying the motion Family Court stated that, "If I order a fellow to take an HLA test, I am ordering him, in effect, to give evidence against himself." Section 532 of the Family Court Act was amended (L.1981, ch. 9, § 2, eff. March 2, 1981) to allow the results of the HLA test to be received in evidence to assist the court in the determination of whether the alleged father is or is not the father of the child. Although results of an HLA blood test are not conclusive, this test has been recognized as being highly accurate on the issue of paternity (Matter of Bowling v. Coney, 91 A.D.2d 1195, 459 N.Y.S.2d 183; Matter of Sherry K. v. Carpenter, 90 A.D.2d 687, 688, 455 N.Y.S.2d 863; see also Matter of Karen K. v. Christopher D., 86 A.D.2d 633, 634, 446 N.Y.S.2d 346). Upon motion of any party in a paternity proceeding, the court must order respondent-putative father to submit to an HLA blood tissue test (Family Court Act § 532, subd. see Matter of Kimiecik v. Daryl E., 87 A.D.2d 284, 285, 452 N.Y.S.2d 717). This is not violative of respondent's privilege against self-incrimination (see Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908; Matter of Linda K.L. v. Robert S., 109 Misc.2d 628, 630, 440 N.Y.S.2d 825; Matter of Jane L. v. Rodney B., 108 Misc.2d 709, 711-713, 438 N.Y.S.2d 726). Family Court shall determine who should pay the cost of the test (cf. Matter of Rachelle L. v. Bruce M., 89 A.D.2d 765, 453 N.Y.S.2d 936).
Order unanimously reversed without costs, motion granted, and matter remitted to Erie County...
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