Department of Social Services on Behalf of Beatrice v. P. v. Trustum C.D.

• Decision Date: 28 November 1983
• Citation: 97 A.D.2d 831,468 N.Y.S.2d 908
• Parties: The DEPARTMENT OF SOCIAL SERVICES o/b/o BEATRICE V.P. (Anonymous) Appellant, v. TRUSTUM C.D. (Anonymous) Respondent.
• Court: New York Supreme Court — Appellate Division

Page 908

468 N.Y.S.2d 908

97 A.D.2d 831

The DEPARTMENT OF SOCIAL SERVICES o/b/o BEATRICE V.P (Anonymous) Appellant, v. TRUSTUM C.D. (Anonymous) Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 28, 1983.

Kenneth Ross Wolfe, Garden City, for appellant.

Robert M. Rosen & Associates, P.C., Garden City (Howard B. Leff and Stacy Silverstein, Garden City, of counsel), for respondent.

Before TITONE, J.P., and O'CONNOR, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a filiation proceeding, petitioner appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (decision by COMSTOCK, J., order by DEMPSEY, J.), entered September 29, 1981, as dismissed the petition.

Order affirmed insofar as appealed from, without costs or disbursements.

On the record before us, we find ample support for the finding that petitioner did not meet her burden of establishing paternity by clear and convincing evidence and we perceive no basis for substituting our judgment for that of the Trial Judge who saw and heard the witnesses (see Matter of Department of Social Servs. of Orange County v. Alan K., 69 A.D.2d 861, 415 N.Y.S.2d 447; Matter of Commissioner of Social Servs. of N.Y. v. James H., 65 A.D.2d 772, 409 N.Y.S.2d 790; Gloria R. v. George P.L., 57 A.D.2d 892, 394 N.Y.S.2d 568; Matter of Linda S. v. James G., 52 A.D.2d 607, 382 N.Y.S.2d 106; cf. Matter of Commissioner of Social Servs. [Patricia A.] v. Philip DeG., 59 N.Y.2d 137, 463 N.Y.S.2d 761, 450 N.E.2d 681).

Nor does the failure of petitioner's attorney to request a human leucocyte antigen blood tissue test, subsequent to the statutory amendment permitting the test results to be received into evidence to aid in the determination of paternity (Family Ct. Act, § 532, as amd. by L.1981, ch. 9, eff. March 2, 1981), warrant reversal. While petitioner claims that she did not receive effective assistance of counsel, it is well settled in civil litigation that an attorney's errors or omissions are binding on the client (Link v. Wabash R.R. Co., 370 U.S. 626, 633-634, 82 S.Ct. 1386, 1390-1391, 8 L.Ed.2d 734; Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666-667 (2 Cir.1980); Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2 Cir.1979). Davis v. United Fruit Co., 402 F.2d 328, 331 (2 Cir.1968), cert. den. 393 U.S. 1085, 89 S.Ct. 869, 21 L.Ed.2d 778), absent extraordinary circumstances such as the attorney's mental illness (e.g., United States v. Cirami, 563 F.2d 26, 34-35 (2 Cir.1977)). ^* Quite simply, it would be a perversion of our adversary system if a litigant could be deprived of a victory because of the dereliction of his or her opponent (see Link v. Wabash R.R. Co., supra ). To be sure, this court is empowered to grant a new trial in the interest of justice (see, e.g., Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867; Misler v. Hilton Int. Co., 39 A.D.2d 946, 333 N.Y.S.2d 119; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4017.09). But that power should be exercised to correct unpreserved fundamental error and not merely to give the unsuccessful litigant a second chance at bat merely because, with the benefit of hindsight, it appears that a better presentation may have been made and a...