Department of Social Services on Behalf of Katherine McL. v. Jay W.

• Decision Date: 17 December 1984
• Citation: 482 N.Y.S.2d 810,105 A.D.2d 19
• Parties: In the Matter of DEPARTMENT OF SOCIAL SERVICES on Behalf of KATHERINE McL. (Anonymous), Respondent, v. JAY W. (Anonymous), Appellant. In the Matter of TEXAS DEPT. OF HUMAN RESOURCES on Behalf of KATHERINE ANNE McL. (Anonymous), Respondent, v. JAY W. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 810

482 N.Y.S.2d 810

105 A.D.2d 19

In the Matter of DEPARTMENT OF SOCIAL SERVICES on Behalf of

KATHERINE McL. (Anonymous), Respondent, v. JAY W. (Anonymous), Appellant.

In the Matter of TEXAS DEPT. OF HUMAN RESOURCES on Behalf of

KATHERINE ANNE McL. (Anonymous), Respondent, v. JAY W. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 17, 1984.

John E. Lander, Babylon, for appellant.

Martin Bradley Ashare, County Atty., Hauppauge (Gregory M. Hensas, Roslyn Heights, of counsel; Vicki M. Richards, on the brief), for respondents.

Before GIBBONS, J.P., and BRACKEN, BROWN and NIEHOFF, JJ.

BROWN, Justice.

On these appeals we are asked to consider, inter alia, whether a proceeding to establish paternity, brought more than five years after the birth of the child, was properly commenced by the child's mother on behalf of a public welfare official of a sister state. We conclude that the proceeding was properly commenced and that the finding of paternity and the support order predicated thereon should be upheld.

In late February or early March, 1974, petitioner Katherine McL., who was then a Michigan resident, met appellant, whom she knew as Jay W., in Florida. Shortly thereafter they engaged in sexual relations. Toward the end of March, 1974, Ms. McL. returned to Michigan, where she resided with her parents, and Jay W. moved to Illinois. In April, 1974, Ms. McL. discovered that she was pregnant and promptly advised Jay W. by telephone. On December 1, 1974, she gave birth in Michigan to a son and named Jay W. as the father on the hospital records. The parties continued to communicate with one another until January, 1976 when Ms. McL. lost contact with the appellant.

On August 21, 1980, Ms. McL. commenced Proceeding No. 1 in the Family Court, Suffolk County, by the filing of a petition which was captioned "PATERNITY PETITION (Mother)" and which named herself as petitioner and listed an Illinois address. Although she was living temporarily in Chicago at the time that the proceeding was commenced, Ms. McL. returned to Michigan in or about October, 1980. During the period from May, 1975 through the commencement of Proceeding No. 1 in August, 1980, Ms. McL. was a recipient of aid to dependent children (ADC) benefits from the State of Michigan Department of Social Services. Along with the petition, Ms. McL. submitted a sworn statement, dated August 18, 1980 and made by a representative of the Child Support Unit of the Washtenaw County, Michigan, Department of Social Services, which read as follows:

"To Whom it may Concern:

"Katherine has the permission of the STATE of MICHIGAN to act as its agent for the purpose of pursuing child support from Jay Ms. is currently receiving Aid to Dependent Children funds from the State of Michigan".

On October 20, 1980, a summons was issued by the Family Court, Suffolk County, directing appellant to appear on November 6, 1980 to respond to the paternity petition. The caption of the summons listed the petitioner as "DSS OBO KATHERINE McL * * * ".

Following the completion of discovery and a series of adjournments, the matter was set down for trial on October 29, 1981. On that day appellant moved to dismiss Proceeding No. 1 on the ground, inter alia, that Ms. McL. was acting in her own right and therefore the proceeding was untimely brought since it had been commenced by her more than two years after the birth of the child. The Family Court denied the application, finding that appellant had waived any Statute of Limitations defense by failing to assert it in either a pre-answer motion to dismiss or in his answer (CPLR 3211, subd. ). Thereupon, a trial was conducted on the merits. The only witness to testify was Ms. McL. At the conclusion of the trial, the court found that it had been established by clear and convincing evidence that appellant was the father of the child. An order of filiation was thereafter entered on January 4, 1982.

In contravention of the mandate of section 545 of the Family Court Act, the court declined to schedule a support hearing and instead directed Ms. McL. to file an appropriate petition for support pursuant to the Uniform Support of Dependents Law, if she be so advised.

In February, 1982, Ms. McL., who was then living in Texas, commenced Proceeding No. 2 in that State which was referred to the Family Court, Suffolk County, for disposition pursuant to the Uniform Support of Dependents Law (Domestic Relations Law, art. 3-A). That proceeding ultimately resulted in an order of support of the Family Court, Suffolk County, entered January 18, 1983, which directed appellant to pay $193.50 per month to the Suffolk County CSEB/Support Collection Unit for the support of his child. These appeals ensued.

Appellant does not take issue on these appeals with respect to the amount of the support award. His arguments are directed rather to the validity of the filiation order upon which the support order is predicated. He argues that the paternity proceeding herein was actually brought by Ms. McL. on her own behalf and not as agent for the Michigan Department of Social Services. Accordingly, he asserts, Proceeding No. 1 was barred by the two-year Statute of Limitations for paternity proceedings brought by the mother of a child born out of wedlock which was in effect at the time of the commencement of the proceeding (Family Ct. Act, § 517, former subd. as added by L.1962, ch. 686) and that it was an abuse of discretion for the Family Court to have denied him leave to amend his answer to include that defense. Appellant argues further that, regardless of any Statute of Limitations claim, the Family Court Act does not authorize a public welfare official to appoint an agent to commence suit on behalf of a department of social services and that, therefore, Ms. McL. lacks standing to bring this proceeding as such an agent.

With regard to the claimed defense of the Statute of Limitations, if the Family Court correctly denied appellant leave to amend his answer to assert the Statute of Limitations, then appellant's failure to raise that defense in a pre-answer motion to dismiss or in his answer constituted a waiver thereof (CPLR 3211, subd. par. 5; 3211, subd. ). In that case, the question of whether Ms. McL. was acting on her own behalf or as a representative of the Michigan Department of Social Services would, of course, be irrelevant.

It is well established that leave to amend pleadings is to be freely given, absent prejudice or surprise resulting directly from the delay (CPLR 3025, subd. Fahey v. County of Ontario, 44 N.Y.2d 934, 408 N.Y.S.2d 314, 380 N.E.2d 146). The determination, however, is one to be made on a case by case basis and, in the last analysis, rests within the sound discretion of the trial court (Mayers v. D'Agostino, 58 N.Y.2d 696, 458 N.Y.S.2d 904, 444 N.E.2d 1323; Fulford v. Baker Perkins, Inc., 100 A.D.2d 861, 474 N.Y.S.2d 114). The nature of the claimed prejudice at bar, resulting from appellant's delay in seeking to amend his pleading, is the fact that the motion to amend was not made until the day of trial, requiring preparation for a trial which would not have been necessary if the defense in the amended pleading had proved successful. Concededly, as we have heretofore noted, such prejudice may, in some cases, be overcome by the imposition of costs (see Campbell v. La Forgia Oil Co., 81 A.D.2d 824, 438 N.Y.S.2d 597). Nevertheless, under the circumstances of this case we are of the view that the unexplained delay in making the motion constituted sufficient prejudice to justify its denial. The information regarding Ms. McL.'s status and her receipt of public funds in Michigan, upon which appellant based his defense, was available to him from the commencement of the paternity proceeding and no reasonable excuse was offered for the delay in making the motion for leave to amend. While the general rule is that leave to amend pleadings should be freely given, that is not to say that in all cases it should be granted. In this case, where appellant inexcusably failed to make the application until the trial had commenced, there was a sufficient basis to justify the court's denial of his motion (Mayers v. D'Agostino, supra; Fulford v. Baker Perkins, Inc., supra; Matter of Schwartz v. New York City Tr. Auth., 104 A.D.2d 370, 478 N.Y.S.2d 700; Shanahan v. Shanahan, 92 A.D.2d 566, 459 N.Y.S.2d 319). The matter was one resting within the discretion of the trial court and we are not prepared to say, upon the record before us, that it abused its discretion (Mayers v. D'Agostino, supra ).

But even if we were to conclude that the Family Court should have permitted appellant to amend his answer to assert the Statute of Limitations as a defense, we would be of the opinion that the paternity proceeding at bar is properly viewed as one originated by a public welfare official and, therefore, timely under the 10-year Statute of Limitations applicable thereto (Family Ct.Act, § 517, subd. ). Beyond that, there exists a serious question with respect to the constitutionality of section 517 of the Family Court Act under the equal protection clause as it affects the ability of children born out of wedlock to enforce their right to support. In light of our reasoning, however, we need not reach this latter issue and, accordingly, do not rule on the constitutionality of the statute.

Paternity proceedings, brought pursuant to article 5 of the Family Court Act, have a twofold purpose: to determine paternity and to secure support for the child (Matter of J. 50 A.D.2d 890, 377 N.Y.S.2d 530, app. dsmd. 39 N.Y.2d 741, 384 N.Y.S.2d 775, 349 N.E.2d 875; Hough v. Light, 275 App.Div. 299, 89 N.Y.S.2d 361; Matter of Geraldine K. v. Elliot D.B., 99 Misc.2d 720, 417 N.Y.S.2d 182). An examination of the historical origins of paternity laws reveals that the original basis for their creation was to provide a means by which governmental entities could...