G.P. v. S.S.
| Citation | 2023 NY Slip Op 50313 (U) |
| Decision Date | 06 April 2023 |
| Docket Number | Index No. XXXXXX/2022 |
| Parties | G.P., Plaintiff, v. S.S., Defendant. |
| Court | United States State Supreme Court (New York) |
Attorney for Plaintiff: Lois S. Campbell, Esq.
Attorney for Defendant: Self-Represented.
Attorney for the Child: Lisa Daniels, Esq.
The following papers have been read on these motions:
Defendant's Order to Show Cause in a Civil Action dated October 25, 2022 x
Plaintiff's Notice of Cross-Motion dated January 9, 2023 x
Defendant's Opposition & Reply dated February 18, 2023 x
Plaintiff's Reply dated March 15, 2023 x
Affirmation of Attorney for the Child dated March 22, 2023 x
The issue before the Court is whether or not this Court should grant the husband [1] a DNA test for the subject child, born during the parties' marriage and entitled to a presumption of legitimacy, based upon an unsubstantiated and uncorroborated allegation of an extramarital affair on the part of the mother. [2] In effect, the Court-under it's duty as parens patriae (see generally Spath v Willis, 71 A.D.2d 489 (3d Dept. 1980)), which duty this Court will not abrogate-must intervene to determine whether or not it is in the best interests of the child (not the parents) to order such testing. Implicit in that question is a secondary question: whether or not the Court must conduct a hearing to determine whether it is in the child's best interests to order a DNA test with respect to same. For the reasons that follow in this Decision and Order, the Court answers both questions in the negative.
The Defendant moves by Order to Show Cause in a Civil Action dated October 25, 2022 (Motion Sequence No.: 001) seeking an Order: in the name of God, help me tha [sic] G.P. bring N. to take a DNA Test; Let this Court assign me a lawer [sic] because I can't afford one, and dismiss this 2,000 dollars to law guardian Lisa Daniels.
The Plaintiff cross-moves by Notice of Cross-Motion dated January 9, 2023 (Motion Sequence No.: 002) seeking an Order: (1) Denying all relief requested by Defendant in his Order To Show Cause and denying Defendant's request for DNA testing because he is precluded from doing so because of the doctrine of equitable estoppel and based on the facts and relevant law of this case; and (2) Pursuant to DRL 240, compelling Defendant to pay to Plaintiff pendente lite just and suitable support for the unemancipated child of the marriage in the amount of $1,005.60/month, including but not limited to basic child support, child care, health insurance and life insurance for the benefit of the child, as well as any arrears that have accumulated since the filing of this motion; and (3) Pursuant to Domestic Relations Law Section 240(1-b), compelling Defendant to maintain during the pendency of this action suitable and just policies of medical, dental, pharmaceutical and hospitalization insurance for the benefit of the Plaintiff and the unemancipated child of the marriage, and to be responsible for any and all unreimbursed medical, dental, pharmaceutical and hospitalization expenses; and (4) Ordering Defendant to return Plaintiff the original of N.'s birth certificate pursuant to the Notice to Produce dated October 14, 2022; and (5) Ordering Defendant to forthwith pay $2,000 to the attorney representing the child pursuant to the Order of this court dated October 24, 2022 or be held in contempt of Court; and (6) Pursuant to CPLR 3126(1), directing that the financial issues to which the information demanded by Plaintiff and not supplied by Defendant, be deemed resolved for the purposes of this action in accordance with the claims of the Plaintiff upon the ground that Defendant has wilfully failed and refused to comply with the Preliminary Conference Order dated June 26, 2022, Notice for Discovery and Inspection dated September 27, 2022; Certification order dated October 14, 2022, Demand to Produce dated October 14, 2022 and Order Appointing Attorney for the Child dated October 14, 2022; and (7) Pursuant to CPLR 3126(2), directing that the Defendant be precluded from opposing Plaintiff's claims or offering evidence or testimony relevant to the financial information which Plaintiff has sought and Defendant has not supplied, upon the ground that Defendant has wilfully failed and refused to comply with the Plaintiff's demands for disclosure and willfully failed and refused to comply with the Preliminary Conference Order dated June 26, 2022, Notice for Discovery and Inspection dated September 27, 2022; Certification order dated October 14, 2022, Demand to Produce dated October 14, 2022 and Order Appointing Attorney for the Child dated October 14, 2022; and (8) Pursuant to CPLR 3126, striking Defendant's Answer due to his failure to comply with Plaintiff's demands for disclosure; and (9) Compelling Defendant to pay Plaintiff the sum of $5,000.00 as and for attorney's fees in the prosecution of this action; and (10) Pursuant to CPLR 3126 and NYCRR 130-1.1, granting the Plaintiff an additional amount of attorney's fees (i.e., $5,000) for the necessity of making this motion and for Defendant's failure to produce discovery answer and because Defendant has unnecessarily delayed this proceeding, and because conduct in this case has been willfully and unreasonably obstructionist and has unreasonably delayed this proceeding; and (11) For such other and further relief as to this Court may seem just and proper.
The parties were married on August 5, 2017. There is one (1) child, to wit: N. (hereinafter referred to as the "Child") who is the subject of litigation in this action (see infra). The Child was born on XXX, 2018, making her four (4) years of age as of the date of this Decision and Order. This matrimonial action was commenced by the filing of a Summons and Verified Compliant (hereinafter referred to as the "Complaint") with the County Clerk on May 9, 2022. The Defendant, pro se, interposed a Verified Answer May 16, 2022 (hereinafter referred to as the "Answer") containing a single Affirmative Defense. The Answer admits the truth of Paragraphs "1" through "6" of the Complaint, denies knowledge or information sufficient to form a belief as to the truth of Paragraph "7" of the Compliant, and denies the allegations of Paragraph "4" and "7" of the Complaint.
The Answer contains a Paragraph which reads:
The Affirmative Defense set forth in the Answer reads:
"November, 2020, I was called by some G.P. family saying that N. is not my biological daughter, until today G. hasn't give me any explanation."
The Answer was verified by the Defendant on May 16, 2022.
The Court held a Preliminary Conference on June 16, 2022. The Preliminary Conference Stipulation & Order, which was so ordered by this Court on June 16, 2022, was signed only by the Plaintiff and her counsel. The Defendant did not execute same.
On October 14, 2022, this Court signed a Certification Order. On October 14, 2022, this Court also issued an Order Appointing Attorney for the Child, whereby it appointed Lisa Daniels, Esq. (hereinafter referred to as the "AFC") as attorney for the child.
Defendant's Contentions:
The Defendant contends that the Child is not his daughter. He claims that he married the Defendant on XXX, 2017, and she became pregnant in XXX of 2018 from someone else. He argues that the Plaintiff cheated on him "all this time" and made him believe that the Child was his daughter. He asks for this Court's help, and that he has been traumatized and that he does not have any peace because of this.
Plaintiff's Contentions:
The Plaintiff argues that the parties met when she was seventeen and the Defendant was thirty-two, having met at Church. She sets forth that the parties were married on XXX, 2017, when she was nineteen and the Defendant was thirty-four, and that they immediately began living together. She avers that the Child was born XXX, 2018, fifteen months after the date of marriage. She sets forth that the Child has the Defendant's last name. She argues that the Defendant was present at the Child's birth at XXX Hospital and his name is on the birth certificate. She argues that the Defendant who was the financial breadwinner of the family, earned $1,500 per week "net" in cash. She sets forth that the parties filed a joint tax return in 2019 where the Child was listed as the daughter. She argues that the Defendant asked her to help him obtain a green card. She argues that the Defendant's immigration papers reflect that the Child is his daughter. She argues that the Defendant vacated and abandoned her and the child on XXX, 2020, and in XXX, 2021 she moved in with her parents. She argues that after the Defendant abandoned her and the Child in XXX of 2020, the Defendant has written to her, by text message and by Facebook messenger, where in he acknowledged that Child as his daughter. She argues that a prior Paternity Petition, filed in the Suffolk County Family Court by the Defendant, was dismissed on XXX, 2022, and that he thereupon filed another Paternity Petition in the Nassau County Family Court on September 12, 2022. [3] She argues that she is in need of support, and that she earned $41,047.60 in 2021. She argues that she was admitted, recently, into a nursing program. She avers that the Child has health insurance through New York State HealthFirst and that she has a policy of insurance through New York State. She argues that the Defendant has not complied with any discovery...
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