Commissioner of Social Services of City of New York v. Harris

• Decision Date: 28 February 2006
• Docket Number: 7296.
• Citation: 2006 NY Slip Op 01378,26 A.D.3d 283,810 N.Y.S.2d 175
• Parties: COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, as Assignee of LORRAINE CAMPBELL, Respondent, v. IRVING HARRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

26 A.D.3d 283

810 N.Y.S.2d 175

2006 NY Slip Op 01378

COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, as Assignee of LORRAINE CAMPBELL, Respondent, v. IRVING HARRIS, Appellant.

7296.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 28, 2006.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about December 18, 2003, vacating her prior determination to vacate orders of paternity and support, unanimously reversed, on the law, without costs, and the matter remanded for a new hearing on issues of paternity and support.

The Department of Social Services (DSS), as assignee, filed a petition seeking an order of filiation against respondent-appellant Irving Harris. The petition alleged that he was the father of Niya S. Campbell, born September 22, 1992, daughter of petitioner Lorraine Campbell.

At a hearing scheduled for June 22, 2001, Harris was informed that he could have the matter adjourned to retain counsel, or could speak for himself. Harris chose to represent himself, and denied he was the father of the subject child.

On January 4, 2002, Harris and Campbell appeared before Hearing Examiner Vanessa Evans. Harris was advised that he had been identified as the father, and had the right to request a DNA test, which Harris did. He was also instructed that he had the right to have an attorney represent him at any paternity hearing.

On April 15, 2002, the parties stipulated as follows: "IT IS HEREBY STIPULATED AND AGREED that this action and the issues therein be referred to the Hearing Examiner/Referee to hear and determine. All appeals of decisions made by the Hearing Examiner/Referee in their capacity as Referee shall be made to the Appellate Division. All issues of support are still subject to the objection process."

On November 13, 2002, the court noted that the oral genetic marker test indicated paternity and that Harris had requested a new genetic blood marker test, to which DSS consented. But Harris, suspicious of the lab, demanded that the lab draw a second vial of blood so he could obtain his own test. When the lab refused to do so, he took his vial of blood out of the lab. The court refused to order another DNA test, given Harris's "inappropriate" conduct, and a hearing was scheduled.

On August 6, 2003, Support Magistrate/Referee Friederwitzer adjudged Harris the father of Niya Campbell. The order of filiation contained the following standard language: "SPECIFIC WRITTEN OBJECTIONS TO THIS ORDER MAY BE FILED WITH THIS COURT WITHIN 30 DAYS OF THE DATE THE ORDER WAS RECEIVED IN COURT OR BY PERSONAL SERVICE, OR IF THE ORDER WAS RECEIVED BY MAIL, WITHIN 35 DAYS OF THE MAILING OF THE ORDER."

On the same day, Support Magistrate Vanessa Evans entered an order of support against Harris. Harris promptly filed an objection to both orders on the grounds that he did not have sexual intercourse with Campbell during the period of conception; that the results of the genetic marker test were tampered with, and that the order of support was incorrectly calculated since it did not take into account another order of support for a nonsubject child. The DSS did not file a rebuttal.

Subsequently, in a decision and order dated November 18, 2003, Justice Cohen granted Harris's objection, vacating the orders of filiation and support, and remanding the case for a new paternity hearing. Justice Cohen held that Support Magistrate Friederwitzer did not hold a proper paternity hearing because, inter alia, she inexplicably commenced the hearing on April 15, 2002 without advising Harris of his right to counsel; and although Harris consistently and continually stated that he believed the genetic marker testing to be tainted, the support magistrate nevertheless entered the results into evidence after informing respondent that he did not properly object in writing to the genetic marker test results, pursuant to Family Court Act § 532. Justice Cohen observed that if Harris had been advised of his right to counsel prior to the commencement of the hearing, Harris's counsel would have had the opportunity to properly object to the admission into evidence of the genetic marker test results.

On December 18, 2003, Justice Cohen vacated her decision and order of November 18, 2003, and remanded the matter for a new paternity hearing. She determined that she did not have jurisdiction to vacate the orders of the Support Magistrate because of the April 15, 2002 stipulation signed by Harris and Campbell whereby all appeals of decisions made by the Hearing Examiner/Referee "shall be made to the Appellate Division."

On appeal, Harris argues that the order of filiation provided that he could submit written objections to the Family Cour...