Green v. Smith

CourtNew York Family Court
Writing for the CourtJOHN R. HEILMAN
Citation65 Misc.2d 588,318 N.Y.S.2d 27
PartiesIn the Matter of the Paternity Petition of Karen GREEN, Petitioner, v. Harry SMITH, Respondent. *
Decision Date15 December 1970

Page 27

318 N.Y.S.2d 27
65 Misc.2d 588
In the Matter of the Paternity Petition of Karen GREEN, Petitioner,
v.
Harry SMITH, Respondent. *
Family Court, Dutchess County.
Dec. 15, 1970.

Page 28

[65 Misc.2d 589] Edward J. Filipowicz, Poughkeepsie, for petitioner.

Lloyd L. Rosenthal, Poughkeepsie, for respondent.

DECISION

JOHN R. HEILMAN, Judge.

This is a proceeding commenced by petition dated March 3, 1970, pursuant to Article 5 of the Family Court Act, in which the petitioner alleges that the respondent is the father of a child born to her out of wedlock on March 22, 1965. By notice dated September 28, 1970 respondent demanded a bill of particulars of the allegations of the petition. Simultaneously with this demand, respondent served petitioner with a notice to take petitioner's deposition upon oral examination. The petitioner did supply the bill of particulars, but through counsel, advised respondent by letter dated October 2, 1970 that she would not submit to oral examination. However, petitioner sought no protective order pursuant to subdivision (a) of CPLR 3103. Upon petitioner's failure to attend the scheduled examination before trial, respondent moved for an order directing her to appear for such examination pursuant to CPLR 3124. Counsel for the respective parties were heard on this motion on the 17th day of November, 1970 and the court reserved decision.

Page 29

Among the issues raised was the effect of the statute of limitations in this proceeding. Section 517 of the Family Court Act provides:

(a) Proceedings to establish the paternity of the child may be instituted during the pregnancy of the mother or after the birth of the child, but shall not be brought after the lapse of more than two years from the birth of the child, unless paternity [65 Misc.2d 590] has been acknowledged by the father in writing or by furnishing support.

(b) If the petitioner is a public welfare official, the proceeding may be originated not more than ten years after the birth of the child.

The petition in the instant case, while it was filed long after the two year period of limitation, alleges that the respondent acknowledged paternity by furnishing support.

If the petitioner here fails to meet her burden with respect to her allegation concerning support by respondent, her petition would be subject to dismissal. (Howard v. Robinson, 32 A.D.2d 837, 302 N.Y.S.2d 347, (2d Dept., 1969))

The constitutionality of section 517 was challenged in Matter of Wales v. Gallan, 61 Misc.2d 681, 306 N.Y.S.2d 614 (Fam.Ct., Richmond Co., 1969), that court declaring that the dual statute of limitations of two and ten years violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. If this court were to follow the holding in Wales, supra, the petitioner would not have to prove support by respondent in order to overcome the provisions of section 517.

Without attacking the merits of the Wales decision, counsel for the respondent urged that this court should not adhere to that holding, in light of the fact that the Attorney General of this State was not joined as a party. While section 71 of the Executive Law does prescribe the procedure for notifying and joining the Attorney General when the constitutionality of a statute is questioned, this procedure is a discretionary one with the court, and it does not appear that the failure of the Attorney General to be notified or to appear in any way affects the validity of the court's decision on the constitutional issue. Nevertheless this court in not inclined to consider Wales as controlling or convincing in the case at bar. The court's research disclosed no appellate ruling in which the constitutionality of section 517 has been raised or ruled upon. Furthermore, it does not appear that Wales itself will be subject to appellate review. This court is not bound by the ruling in Wales. The two year statute of limitations was...

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9 practice notes
  • D'Elia on Behalf of Maggie M. v. Douglas B.
    • United States
    • New York Family Court
    • January 13, 1988
    ...procedural provisions and are governed by the C.P.L.R. (See, F.C.A. Sec. 511 et seq.; CPLR Secs. 101, 105(d); Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27; Harris v. Doley, 22 A.D.2d 769, 253 N.Y.S.2d 645; Tilson v. Bark, 52 Misc.2d 338, 275 N.Y.S.2d 600 (Fam.Ct.N.Y.Co.1966); T......
  • Com'r of Social Services of City of New York, In re
    • United States
    • New York Family Court
    • September 28, 1973
    ...1964); Matter of Linnie D.B. v. Lonnie J.H., 65 Misc.2d 754, 317 N.Y.S.2d 832 (Family Court Westch. Co. 1970); Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27 (Fam.Ct. Dutch. Co. 1970); cf. Matter of Clausi, 296 N.Y. 354, 73 N.E.2d 548 (1947); and Commissioner of Public Welfare v.......
  • W. v. D.
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 1971
    ...practice in filiation cases (see Matter of Tilson v. Bark, 52 Misc.2d 338, 275 N.Y.S.2d 600; [36 A.D.2d 457] Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27; Matter of 'Doe' v. 'Roe', 40 Misc.2d 148, 242 N.Y.S.2d 742; cf. Green v. Brown, 65 Misc.2d 226, 317 N.Y.S.2d 104). Denials ......
  • Torino v. Cruz
    • United States
    • New York Family Court
    • May 27, 1975
    ...and are governed by the Civil Practice Law and Rules, absent specific provisions of the Family Court Act. Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27. However, in view of the burdensome consequences for the respondent in a filiation proceeding and the difficulty in meeting a c......
  • Request a trial to view additional results
9 cases
  • D'Elia on Behalf of Maggie M. v. Douglas B.
    • United States
    • New York Family Court
    • January 13, 1988
    ...procedural provisions and are governed by the C.P.L.R. (See, F.C.A. Sec. 511 et seq.; CPLR Secs. 101, 105(d); Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27; Harris v. Doley, 22 A.D.2d 769, 253 N.Y.S.2d 645; Tilson v. Bark, 52 Misc.2d 338, 275 N.Y.S.2d 600 (Fam.Ct.N.Y.Co.1966); T......
  • Com'r of Social Services of City of New York, In re
    • United States
    • New York Family Court
    • September 28, 1973
    ...1964); Matter of Linnie D.B. v. Lonnie J.H., 65 Misc.2d 754, 317 N.Y.S.2d 832 (Family Court Westch. Co. 1970); Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27 (Fam.Ct. Dutch. Co. 1970); cf. Matter of Clausi, 296 N.Y. 354, 73 N.E.2d 548 (1947); and Commissioner of Public Welfare v.......
  • W. v. D.
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 1971
    ...practice in filiation cases (see Matter of Tilson v. Bark, 52 Misc.2d 338, 275 N.Y.S.2d 600; [36 A.D.2d 457] Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27; Matter of 'Doe' v. 'Roe', 40 Misc.2d 148, 242 N.Y.S.2d 742; cf. Green v. Brown, 65 Misc.2d 226, 317 N.Y.S.2d 104). Denials ......
  • Torino v. Cruz
    • United States
    • New York Family Court
    • May 27, 1975
    ...and are governed by the Civil Practice Law and Rules, absent specific provisions of the Family Court Act. Matter of Green v. Smith, 65 Misc.2d 588, 318 N.Y.S.2d 27. However, in view of the burdensome consequences for the respondent in a filiation proceeding and the difficulty in meeting a c......
  • Request a trial to view additional results

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