Lorraine M. v. Linwood M. S.

• Decision Date: 14 September 1982
• Citation: 455 N.Y.S.2d 48,115 Misc.2d 922
• Parties: In the Matter of the Paternity Petition of LORRAINE, M., Petitioner, v. LINWOOD, M. S., Respondent.
• Court: New York City Court

Page 48

455 N.Y.S.2d 48

115 Misc.2d 922

In the Matter of the Paternity Petition of LORRAINE, M., Petitioner, v. LINWOOD, M. S., Respondent.

Family Court, City of New York New York County.

Sept. 14, 1982.

Alex Nashman, New York City, attorney for petitioner.

Pryor, Cashman, Sherman & Flynn, New York City, attorneys for respondent.

DECISION and ORDER

BRUCE M. KAPLAN, Judge:

A paternity suit is singular in the range of emotions and events that it encompasses. The instant matter which was commenced when the child Nahdia was 7 years old well illustrates that adage.

After consideration of the testimony and documentary evidence adduced by petitioner, and the documentary evidence introduced on respondent's case, the petition is dismissed.

The failure of petitioner's case is ascribable not only to the manner in which her counsel failed to utilize effectively a wealth of available documentary evidence, but also his failure to elicit from petitioner the quality of testimony necessary to prevail.

On direct examination petitioner testified that she had had sexual relations with respondent exclusively at the time she became pregnant with Nahdia, and that she commenced a paternity proceeding in late 1972. She further claims that she dropped the proceeding at respondent's behest.

Petitioner also introduced 23 writings (Petitioner's Exhibit No. 1 in Evidence) which included 2 bills paid on behalf of Nahdia by respondent, and various letters, cards, and post cards sent by respondent to Nahdia from various locations around the world over a five-year period between 1974 and 1979. No attempt was made to elicit any information as to the circumstances attendant upon the receipt of these writings or any conversation which they occasioned between the parties.

Nahdia's birth certificate listed Llewellyn Ernest M. as her father. Llewellyn M. was married to petitioner at the time that Nahdia was born, but she barely alluded to this fact on her direct examination.

It was only on redirect that petitioner's counsel broached the subject of non-access. The matter was explored perfunctorily with no more information elicited than that the last time petitioner had seen Llewellyn M. was at her mother's funeral in June 1968, and that shortly thereafter he was stationed in the Philippines in the U.S. Army Air Force (sic).

The cross-examination of petitioner by respondent's counsel essayed two of the classic functions of that endeavor. He probed petitioner's ability to observe, recall and relate, and undermined her credibility by confronting her with documentary evidence which was at odds with crucial aspects of her testimony. With respect to the first, petitioner's capacity to recollect financial details, time sequences and actual dates was shown to be minimal.

With respect to the second, respondent not only showed that Llewellyn M. was listed as Nahdia's father on her birth certificate (Respondent's Exhibit B in Evidence), but also that she named one Ray V. as Nahdia's father on a statement of alleged paternity which petitioner signed on June 4, 1973 (Respondent's Exhibit C in Evidence).

Her explanation of how the name Jimmy C appeared on some of the other documents was a straightforward one. She contended that Jimmy C was a fictitious entity, and that respondent importuned her to make up that name when she spoke to DSS representatives.

This explanation is simply incredible. On redirect petitioner testified that she discussed with respondent her intention to apply for public assistance because he wasn't giving her enough money, and that she would have to give his name as the father. He asked her not to. He said... "well, use Jimmy C. Use that name because if I had used his name his job would have been in jeopardy and would have messed things up with his wife." (T. 9/23/81, p. 8).

This conversation would logically have had to occur prior to June 4, 1973, when petitioner applied for public assistance and signed a statement of alleged paternity (Respondent's Exhibit C in Evidence), if petitioner is to be believed. Yet the name of Jimmy C does not appear on that document. Rather, petitioner named Ray V as the putative father.

It was not until June 10, 1976 that petitioner furnished the name Jimmy C at a face to face recertification (Respondent's Exhibit G in Evidence).

These unexplained inconsistencies cannot be ascribed to innocent confusion. Respondent resourcefully demonstrated that petitioner had previously attempted to manipulate the Social Services system to her financial advantage, and in fact had been caught at it.

An HLA Test Report Cannot Be Admitted Into Evidence Without A Proper Foundation For Its Introduction.

Petitioner's attempt to introduce into evidence the written report embodying the results of a comprehensive blood test raises three distinct issues. (1) Can a particular item be introduced into evidence? (2) What is the proper manner of its introduction? and (3) May the court take judicial notice of the test results?

The question of the admission into evidence of the RBC Enzyme and RBC Serum Protein tests results turns on whether these results are legally competent notwithstanding the Court's direction that the parties submit to these tests.

The Court could not properly admit these tests results into evidence because the Legislature, by enactment of L. 1981, Ch. 9 removed only the bar to the receipt into evidence of HLA tests results. It left it undisturbed with respect to the RBC Enzyme and RBC Serum Protein tests.

It is of no moment to argue that RBC Enzyme and RBC Serum Protein tests are generally accepted as reliable in the scientific community. That remains a matter for legislative determination, one which may be slow to come. It is not uncommon for a hiatus to occur between a test acceptance as valid for the scientific community and legislative recognition of that fact. A considerable time elapsed between the early part of this century when Dr. Karl Landsteiner discovered human blood groups, and subsequent understanding of their heredity aspects made possible the eventual use of blood tests to scientifically evaluate allegations of paternity (Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202 at 2205-6, 68 L.Ed.2d 627), and the acceptance of such data as valid evidence in New York.

Indeed, it was not until 1935 that the use of the ABO test as evidence of exclusion was authorized by the Legislature. See L. 1935, c. 196; In re Swahn's Will, 158 Misc. 17, 285 N.Y.S. 234 (Surrogate's Ct. Kings Co., 1936).

It may well be that the Legislature will broaden the categories of blood tests which may be received into evidence to include RBC Enzyme and RBC Serum Protein tests. This Court would strongly urge the Legislature to do so.

However, it is unwarranted to characterize the failure to include these tests in the liberalizing language of L. 1981 c. 9. as a mere oversight. One reason that this legislation was enacted was that the Legislature was urged to do so in several cogently worded and highly persuasive Family Court decisions.

Judge Huttner in Edward K. v. Marcy R., 106 Misc.2d 506, 434 N.Y.S.2d 108 (Fam.Ct. Kings Co., 1980), and Judge McDonald in Jane L. v. Rodney B., 103 Misc.2d 9, 425 N.Y.S.2d 235 (Fam.Ct.N.Y.Co., 1980) exhorted the Legislature to allow the inclusory results of HLA tests to be admitted into evidence. Similarly, in Matter of Goodrich v. Norman, 100 Misc.2d 33, 421 N.Y.S.2d 285 (Fam.Ct.N.Y.Co., 1979) Judge Miller recommended that the Legislature revise FCA § 532. She made reference to the Joint AMA/ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Paternity Proceedings, (10 Fam.L.Q. 247), an article which reviewed the AMA/ABA joint report on the use of blood tests in paternity proceedings.

These decisions all urged the Legislature to amend § 532 to render admissible the results of HLA testing.

The Legislature acted responsively to those urgings. It may have done so with respect to RBC Enzyme and RBC Serum Protein testing if it had been specifically importuned to do so since a higher degree of plausibility of paternity index is obtainable by recourse to them. This higher degree is ascertainable because the plausibility of paternity as calculated by the Essen-Moller formula necessarily becomes greater when additional genetic marker test results are employed to establish the ratio between a random man furnishing a gene found in the child but not in the mother, and a man of the putative father's type furnishing it. Since the formula W (plausibility of paternity)

= 1

-------

1 k X/Y

involves multiplying the individual ratios of the various systems to determine Y/X, it follows that utilizing additional test results that do not exclude any random men would boost the level of probability. Until the Legislature acts, there is a statutory bar to the receipt of such test results into evidence.

The Court is aware of the opinion of Judge Torres in Catherine H. v. James S., 112 Misc.2d 429, 447 N.Y.S.2d 109 (Fam.Ct. Kings Co., 1982). I must respectfully decline to follow it.

The Legislature has addressed the question of what particular blood tests may be received into evidence and it remains the province of the Legislature, and not that of the courts to enlarge that area.

When documentary evidence in the form of a written report is proffered for introduction into evidence, two facets must be considered. First, may a particular item be introduced; and only if that question is answered in the affirmative does the discussion proceed to how it may be introduced.

The language presently contained in FCA § 532 had its genesis in the 1930's when decisional law precluded the introduction of evidence demonstrating exclusion of paternity based on ABO red blood cell test results. The court inTaylor v. Diamond, 241 A.D. 702, 269 N.Y.S. 799 (2nd Dept., 1934) found no predicate for its introduction at that time. The Legislature, after determining that exclusion based on the...