Lory v. Lory
| Decision Date | 11 April 1983 |
| Citation | 462 N.Y.S.2d 744,119 Misc.2d 205 |
| Parties | Todd LORY, Plaintiff, v. Christine LORY, Defendant. |
| Court | New York Supreme Court |
This motion for reargument of the order of the Honorable Paul T. D'Amaro, dated December 17, 1982 is granted. After evaluation of the original papers filed in this matter, as well as the papers submitted on this motion for reargument, and after a full evidentiary hearing in this application held before me on February 24, 1983, this Court adheres to the original determination made by the Honorable Paul T. D'Amaro.
There is an action for divorce pending in this Court between the plaintiff Todd Lory and the defendant Christine Lory. On December 11, 1982, plaintiff brought on a motion for visitation by way of an Order to Show Cause. On December 17, 1982, the Honorable Paul T. D'Amaro awarded plaintiff visitation rights with the infant issue of the marriage. There was no opposition to the original motion. Apparently, opposition to the motion for visitation was received shortly after the decision was issued by Judge D'Amaro. On December 22, 1982, defendant Christine Lory moved, by Order to Show Cause for an order granting leave to the defendant to reargue the motion and order of December 17, 1982. On January 11, 1983, the Honorable Paul T. D'Amaro determined that the parties raised substantial issues of fact which could not be determined on the papers alone. Accordingly, he directed a hearing before any Justice sitting at Special Term Part V, following the payment of appropriate calendar fees and the filing of a note of issue. On February 16, 1983, this matter came before me, and, accordingly a full evidentiary hearing was commenced.
The first issue raised by the plaintiff was whether service of the Order to Show Cause was performed in accordance with the order of the Honorable Paul T. D'Amaro directing "personal service" as set forth in the Order to Show Cause dated December 22, 1982. The Court concluded that such service was in fact proper.
The remaining issue as to whether visitation was properly awarded to the plaintiff, Todd Lory, was adjourned until February 24, 1983, with the provision that pending the continuance of the hearing that visitation as set forth in the order of December 17, 1982 be continued. On February 24, 1982, the hearing was continued. At that time the defendant challenged the order of visitation on the sole basis of her opinion that plaintiff Todd Lory was not the father of the infant issue of the marriage. Defendant contends that another man Michael DeLuca is in fact the true father of the infant.
The following testimony was elicited from the parties concerning their relationship up until the present time; plaintiff and defendant were married in July of 1978. The infant Jason Michael Lory was born on December 21, 1981. Plaintiff is employed as catering manager of C.W. Post College and earns approximately $19,000.00 annually. The defendant wife is not employed, but does have some marital assets and is supported by her lover Michael DeLuca. Further testimony revealed that at the time of probable conception of the infant the plaintiff had access on numerous occasions to the defendant. During the pregnancy of the defendant the plaintiff husband states that he and his wife enjoyed a good relationship. Both attended natural childbirth classes together and both participated in selecting the name of the infant Jason Michael Lory. There is no question that the plaintiff father supported and deeply cared for the infant child up until the separation of the husband and wife, and since the separation the plaintiff has attempted on numerous occasions to continue to support and visit with his child, only to be repeatedly rebuffed from doing so by the defendant. Yet his efforts to visit with his son have never ceased. Even the father of the defendant took the stand and testified that the plaintiff has a great love for Jason Michael Lory.
The defendant wife did not dispute plaintiff's assertions regarding plaintiff's love for his son and his determination to visit and support Jason Michael Lory. She claims that while the plaintiff has tried to support both the infant and herself she has refused such support based upon her belief that the plaintiff is not the father of her child. She contends that the father of her child is Michael DeLuca, the man she is presently living with and whom she hopes to marry. Defendant acknowledges that during her pregnancy and for sometime thereafter she held out the plaintiff as the father of her child. However, she claims that in the spring of 1982 she, Mr. DeLuca and Jason Michael Lory voluntarily submitted to a Human Leucocyte Antigen Test (hereinafter HLA test). The results of the HLA test were received by her in June 1982. She alleges that the results of such test "practically prove" that Michael DeLuca is the father of her child. Two weeks following her receipt of the results of the HLA Test, defendant alleges she "mustered up the courage" and informed her husband of the results. Since that time she has refused to allow the plaintiff to visit or support Jason Michael Lory.
Defendant moves to introduce the results of the HLA test into evidence pursuant to CPLR 4518 as proof that the plaintiff is not the father of Jason Michael Lory. Defendant acknowledges the strongest presumptions in the law is the presumption of legitimacy, however, defendant maintains that the results of this HLA test if admitted into evidence will rebut the presumption or at least shift the burden of the claim of legitimacy onto the shoulders of the plaintiff.
The attorney for the plaintiff does not doubt the strength of the HLA test. He does however question the propriety of its admission into a hearing regarding visitation. It is the contention of the plaintiff that if the defendant wishes to raise the issue of the legitimacy of the infant, such challenge should be made through a declaratory judgment action.
This Court reserved decision as to the admission of the results of the HLA Test into evidence.
For the reasons set forth herein the Court is firmly in favor of the position advanced by the plaintiff.
In this pendente lite application for visitation there is only one issue to be decided by the Court. That is, whether the results of an independently obtained HLA Test may be introduced into evidence pursuant to CPLR 4518(c) where the results of that test are to be solely utilized by the wife as a vehicle to attack the status of the plaintiff as the father and to declare the infant illegitimate.
(c) Other records. All records, writings and other things referred to in sections 2306, 2307 and any record and report relating to the administering and analysis of a blood grouping test administered pursuant to sections four hundred eighteen and five hundred thirty two of the Family Court Act are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, library, department or bureau of a municipal corporation or of the state or by an employee delegated for that purpose.
The court is of the opinion that merely because the HLA test was not administered pursuant to court direction under sections 418 and 532 of the Family Court Act would not per se void its admission into evidence under CPLR 4518(c). This court knows of no rule which excludes the results of an HLA test or blood grouping test simply because the test was not ordered by a court. Oliver v. England, 48 Misc.2d 335, 264 N.Y.S.2d 999; Moore v. Murray, 63 Misc.2d 401, 311 N.Y.S.2d 794. To refuse to allow a test into evidence simply because the test was not performed under court direction would be a superfluous construction of the statute because such a rigid construction might dissuade parties from voluntarily expediting a proceeding such as a paternity proceeding where the need to determine questions of support is immediate. In Oliver v. England, supra, such a question was directly before the Court. There, in a paternity proceeding, the petitioner (wife) sought to establish that the respondent (her lover) was the father of her infant. Prior to the proceeding the petitioner, her husband and the infant child submitted to blood tests which established that the husband was excluded as the father of the child. When the petitioner attempted to introduce the results of tests into evidence the respondent objected based upon the ground that the test was conducted without a court order. The court overruled the respondent's objection and admitted the results of the blood tests into evidence. The rationale behind the evidentiary ruling was grounded in the belief that the results of the blood test would logically tend to prove one of the principal facts in issue (paternity) and therefore the evidence...
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