Doe v. Roe
| Decision Date | 11 March 1963 |
| Citation | 40 Misc.2d 148,242 N.Y.S.2d 742 |
| Parties | In the Matter of the Paternity Proceedings of Mary DOE, Petitioner, v. Richard ROE, Respondent. |
| Court | New York Family Court |
Gustave I. Jahr, New York City, for petitioner.
Arnold D. Roseman, New York City, for respondent.
The Petitioner has moved this Court for an order vacating the Respondent's notice to examine the Petitioner before trial.
The proceeding is one which seeks to establish the paternity of a male child born to Petitioner, out of wedlock, on March 12, 1963, at Flower Fifth Avenue Hospital, New York City. This proceedings was commenced by the filing of a verified petition on January 28, 1963, and issue was joined on February 8, 1963, when the Respondent appeared in person and by counsel, denied the allegations of the petition and moved for a Blood-Brouping Test. On March 1, 1963, the Respondent served a demand for a bill of particulars which contained twenty (20) items and a verified bill was served in response thereto on March 6, 1963.
On March 4, 1963, the Respondent served a notice to examine the Petitioner on March 19, 1963, at 405 Lexington Avenue, New York City, at the office of one Sanford Dean Kaufman, a Notary Public, with respect to the relevant and material allegations of fact put in issue by the pleadings. The notice is the printed form commonly used in Civil actions. On March 12, 1963, the instant motion was brought on by Petitioner by an Order to Show Cause which stayed to examination pending the hearing and determination of the Motion. Petitioner's motion requested that an order be made as follows:
(1) Vacating Respondent's motion for a further bill of particulars,
(2) denying the relief requested by the Respondent in said motion, and
(3) vacating the Respondent's notice to examine the Petitioner before trial.
This motion duly came on to be argued on March 29, 1963, together with a motion by the Respondent for an order directing the Petitioner to serve and file a further bill of particulars. The Court disposed of Items 1 and 2 of the Petitioner's notice as follows:
Item 1--Dismissed, as the Court finds no authority to vacate a motion duly made; and
Iter 2--permitted to be withdrawn as the relief requested therein was disposed of in connection with the Respondent's motion for a further bill.
The remaining Item 3, which seeks an order vacating the Respondent's Notice of Examination of the Petitioner is now before the Court for disposition.
The Court has been unable to find any decisional law pertaining to examinations before trial under the Family Court Act Which became effective on September 1, 1962. Prior to September 1, 1962, filiation proceedings within the City of New York were tried in the Court of Special Sessions pursuant to Article V of the then New York City Criminal Courts Act, and by the Children's Court in Counties outside the City of New York. Both Courts were Courts not of record and the practice and procedure in such Courts was not governed by the Civil Practice Act. An application for a pre-trial examination in a paternity proceeding in the Children's Court, Sullivan County was denied because the Children's Court was a Court not of record, and a like application was denied in a support proceeding in the Domestic Relations Court of the City of New York for the same reason. In re Wurtzel, 18 Misc.2d 994, 191 N.Y.S.2d 246; 'Denton' v. 'Denton', 179 Misc. 681, 37 N.Y.S.2d 704.
It is the contention of the Petitioner that the Respondent's Notice of Examination before Trial is not authorized under the F.C.A., and is null and void and should be set aside for the following reasons:
The Respondent is not examinable by reason of the privilege granted under Sec. 531 of the Family Court Act, which reads in part:
The petitioner argues that, by reason of the foregoing section, the Respondent is entitled to refuse to submit to such an examination by the Petitioner, and Petitioner is thereby deprived of her right to examine under Sec. 288 of the C.P.A. which provides that either party may examine the other party. It has been held that the mere fact that a privilege exists is no reason for the denial of an order for the examination since the privilege is a personal one and may or may not be insisted upon by the...
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Com'r of Social Services of City of New York, In re
...Dept. 1966); Matter of Howard v. Robinson, 32 A.D.2d 837, 302 N.Y.S.2d 347 (2nd Dept. 1969); and Matter of Doe v. Roe, 40 Misc.2d 148 at 150, 242 N.Y.S.2d 742, at 744 (Fam.Ct.N.Y.Co.1963). Under this construction an inference unfavorable to the respondent may be drawn from his failure to ca......
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