In re Marilene S. v. David H.

• Decision Date: 21 June 2011
• Docket Number: Docket No. P-13160-07,2010-11885
• Parties: In the Matter of Marilene S. (Anonymous), respondent, v. David H. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 05505

In the Matter of Marilene S. (Anonymous), respondent,
v.
David H. (Anonymous), appellant.

2010-11885
Docket No. P-13160-07

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on June 21, 2011

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

SANDRA L. SGROI, JJ.

Johnson & Cohen, LLP, Pearl River, N.Y. (Martin T. Johnson of counsel), for appellant.

Lauren B. Abramson, Harrison, N.Y., for respondent.

David J. Peck, Harrison, N.Y., attorney for the child.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 5 to establish paternity and for an award of child support, David H. appeals, by permission, as limited by his brief, from so much of an order of the Family Court, Westchester County (Scattaretico-Naber, J.), dated December 6, 2010, as directed him to submit to genetic marker testing. By decision and order on motion dated February 7, 2011, this Court stayed the order insofar as appealed from pending hearing and determination of the appeal.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Family Court Act § 532 provides that, in a proceeding to establish paternity, "on the court's own motion or the motion of any party, [the court] shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests" (Family Ct Act § 532[a]; see Matter of Shondel J. v Mark D., 7 NY3d 320, 329). "No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of . . . equitable estoppel" (Family Ct Act § 532[a]). Where a party to a paternity proceeding raises an issue of equitable estoppel, that issue must be resolved before any biological testing is ordered (see Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 6 n; Debra H. v Janice R., 14 NY3d 576, 592, cert deniedUS, 131 S Ct 908; Matter of Shondel J. v Mark D., 7 NY3d at 330; Matter of Isaiah A.C. v Faith T., 43 AD3d 1048, 1048-1049; Matter of Darlene L.-B. v Claudio B., 27 AD3d 564; Matter of Westchester County Dept. of Social Servs. v Robert W.R., 25 AD3d 62, 71-72).

Under the unusual circumstances of this case, the appellant failed to allege facts...