In the Matter of Morningstar

• Decision Date: 29 April 2005
• Docket Number: CA 04-01405.
• Citation: 2005 NY Slip Op 03418,17 A.D.3d 1060,794 N.Y.S.2d 205
• Parties: In the Matter of RAY F. MORNINGSTAR, Deceased. RAY D. MORNINGSTAR et al., as Administrators of the Estate of RAY F. MORNINGSTAR, Deceased, Appellants; RAY F. DAVIS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

17 A.D.3d 1060

794 N.Y.S.2d 205

2005 NY Slip Op 03418

In the Matter of RAY F. MORNINGSTAR, Deceased. RAY D. MORNINGSTAR et al., as Administrators of the Estate of RAY F. MORNINGSTAR, Deceased, Appellants; RAY F. DAVIS et al., Respondents.

CA 04-01405.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 29, 2005.

Appeal from an order of the Surrogate's Court, Erie County (Barbara Howe, S.), entered May 25, 2004 in a proceeding to establish heirs and intestate distributees of an estate. The order, insofar as appealed from, granted respondents' motion to compel postmortem DNA testing pursuant to EPTL 4-1.2 (a) (2) (C).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Petitioners, marital children of decedent and administrators of his estate, initiated this proceeding by filing a petition seeking a decree establishing the right of inheritance to real property owned by decedent at the time of his death. Respondents, alleged nonmarital children of decedent, filed a cross petition seeking a decree establishing that they are each entitled, as intestate distributees, to inherit a share of decedent's estate. Surrogate's Court properly granted respondents' motion pursuant to CPLR 3124 seeking to compel the production of available blood and/or tissue samples of decedent for the purpose of conducting DNA testing. To establish their alleged inheritance rights under EPTL 4-1.2 (a) (2) (C), respondents are required to establish paternity by clear and convincing evidence and show that decedent openly and notoriously acknowledged them as his children (see Matter of Bonanno, 192 Misc 2d 86, 88-89 [2002]). The results of DNA testing may be used to satisfy their burden of establishing paternity (see Matter of Thayer, 1 Misc 3d 791, 793 [2003]; Bonanno, 192 Misc 2d at 88). Contrary to the contention of petitioners, there is no basis in the language of the statute or the circumstances of this proceeding for requiring respondents to demonstrate first that decedent openly and notoriously acknowledged them as his children before DNA testing may proceed (cf. Matter of Seekins, 194 Misc 2d 422, 424 [2002]; see generally Matter of Santos, 196 Misc 2d 972, 974-975 [2003]; Bonanno, 192 Misc 2d at 88).

Present — Green, J.P., Scudder, Gorski, Pine and Lawton, JJ.