Matter of Estate of Poldrugovaz

• Decision Date: 05 February 2008
• Docket Number: 2005-10734.
• Citation: 851 N.Y.S.2d 254,2008 NY Slip Op 01152,50 A.D.3d 117
• Parties: In the Matter of the Estate of GEORGE POLDRUGOVAZ, Deceased. KIM M. REGO, Respondent; WILLIAM POLDRUGOVAZ, Appellant.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 117

851 N.Y.S.2d 254

2008 NY Slip Op 01152

In the Matter of the Estate of GEORGE POLDRUGOVAZ, Deceased.

KIM M. REGO, Respondent;

WILLIAM POLDRUGOVAZ, Appellant.

2005-10734.

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

February 5, 2008.

Philip F. Alba, P.C., West Islip (Joseph C. Leshen of counsel), for appellant.

John M. Bigler, Wantagh, for respondent.

OPINION OF THE COURT

SKELOS, J.

The issue on this appeal is presented in the context of a motion for pretrial disclosure: In a proceeding brought by a nonmarital child to establish inheritance rights pursuant to EPTL 4-1.2 (a) (2) (C), what standard of proof is to be applied to a pretrial request for posthumous genetic marker testing? Today we hold that a court may grant a pretrial motion for posthumous genetic marker testing when the applicant provides some evidence that the decedent openly and notoriously acknowledged the nonmarital child as his own, and establishes that genetic marker testing is reasonable and practicable under the totality of the circumstances. However, our holding should not be interpreted as altering the statutory standard of proof essential to the standing of a nonmarital child to assert inheritance rights under EPTL 4-1.2 (a) (2) (C), to wit: clear and convincing evidence of paternity together with proof that the alleged father openly and notoriously acknowledged the child as his own (L 1981, ch 75, § 1).

In a petition for letters of administration, Kim M. Rego claims to be the nonmarital child of the decedent, George Poldrugovaz, who died intestate on December 17, 2003. The appellant, William Poldrugovaz, is the decedent's sole surviving sibling. The decedent's parents and one other brother predeceased the decedent. It is undisputed that the decedent was never married and had no other children. The decedent died by electrocution while performing his work at a Macy's store. His body was found in the ceiling rafters a few days after his death. The Office of the Chief Medical Examiner of the City of New York performed an autopsy to determine the cause of the decedent's death. In the normal course of the autopsy, certain tissue specimens were obtained from the decedent's body.

Following the filing of her petition for letters of administration, the petitioner moved to direct the New York City Chief Medical Examiner to send a portion of the tissue specimens to a laboratory for testing "so as to provide `clear and convincing' evidence that the Petitioner `Kim M. Rego' is the decedent's sole distributee and heir-at-law pursuant to EPTL 4-1.2 (a) (2) (C)." In support of her motion, the petitioner submitted, inter alia: the report of the medical examiner; her own affidavit attesting to, among other things, her resemblance to the decedent and a meeting she had with the decedent at which, she contends, the decedent acknowledged in the presence of another person that she was his child; individual photographs of the decedent and the petitioner which, she contends, evince their like familial features; and the affidavits of several other acquaintances of the decedent who attest that the decedent openly acknowledged that he was the petitioner's father. The appellant objected by way of an answer to the petition and a memorandum of law in opposition.

Relying on the decision of the Appellate Division, Fourth Department, in Matter of Morningstar (17 AD3d 1060, 1060-1061 [2005]), the Surrogate's Court found that the petitioner provided "some evidence" that the decedent openly and notoriously acknowledged paternity and granted the petitioner's motion in its entirety.

The appellant, relying on Matter of Davis (27 AD3d 124, 128-129 [2006]), a subsequent opinion and order of this Court, contends that the petitioner's motion should have been denied absent clear and convincing proof that the decedent openly and notoriously acknowledged that the petitioner was his child.

In Matter of Morningstar our colleagues in the Appellate Division, Fourth Department, found "no basis in the language of the statute or the circumstances of [the] proceeding" in Surrogate's Court to require the nonmarital children "to demonstrate first that decedent openly and notoriously acknowledged them as his children" before granting their application made pursuant to CPLR 3124 to obtain posthumous DNA testing on available blood or tissue samples (17 AD3d at 1060; see also Matter of Bonanno, 192 Misc 2d 86, 88 [2002]). Our holding in Matter of Davis (27 AD3d 124 [2006]) is to the contrary. It requires a party seeking posthumous genetic marker testing to first establish by clear and convincing evidence that the decedent openly and notoriously acknowledged paternity (see Matter of Davis, 27 AD3d 124, 128-129 [2006]).

These divergent opinions demonstrate the prescience of the bar when it commented on the proposed legislation to add EPTL 4-1.2 (a) (2) (C) (see 1981 NY Senate-Assembly Bill S1709-A, A2148-A) when the proposed legislation was circulated prior to its enactment: "The bill leaves unanswered exactly how the standards of `clear and convincing evidence' and `openly and notoriously acknowledged' will be applied ... the risk of inconsistent decisions is inherent in the application of such standards" (Mem to Governor, Comm on Legislation, Trusts and Estates Section, NY St Bar Assn, Apr. 22, 1981, at 2, Bill Jacket, L 1981, ch 75).

The Court of Appeals has not addressed this issue. Accordingly, the appellant contends that the doctrine of stare decisis compels us, upon the authority of Matter of Davis, to reverse. Stare decisis, the principle that "`[p]recedents and rules must be followed'" is not without limitation (Matter of Eckart, 39 NY2d 493, 498 [1976], quoting Blackstone, Commentaries on the Law of England, at 70). Courts are bound to adhere to their prior holdings unless "`it can be shown that the law has been misapplied, or where the former determination is evidently contrary to reason'" (Matter of Eckart, 39 NY2d at 499, quoting Rumsey v New York & New England R.R. Co., 133 NY 79, 85 [1892]). To be sure, courts may more readily reexamine a court-made rule as opposed to one involving error in the construction of a statute (cf. Matter of Eckart, 39 NY2d at 499).

Neither EPTL 4-1.2 (a) (2) (C) nor the Surrogate's Court Procedure Act addresses the issue of pretrial discovery. Our holding in Matter of Davis is less than two years old and is not ingrained in the jurisprudence of the State. To the extent our Court addressed this statute prior to Matter of Davis, the Court did not address the question of pretrial disclosure presented here and in Matter of Davis (see Matter of Anglin, 216 AD2d 557 [1995]; Matter of Rifkin, 177 AD2d 631 [1991]). Rather, in those cases the Court reviewed determinations of the respective Surrogate's Courts as to whether each petitioner had met the burden of proving that he or she was the nonmarital child of the decedent (id.). Accordingly, those cases do not establish precedent as to the issue now before the Court (see Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117, 123-124 [2006]).

A review of several decisions in the Surrogate's Courts and the opinions of legal commentators discussed infra reveals that Matter of Davis is contrary to the established legal trend here and in other states, which is to enhance the ability of nonmarital children to assert their rights of inheritance (see generally Cooper, Posthumous Paternity Testing: A Proposal to Amend EPTL 4-1.2 [a] [2] [D], 69 Alb L Rev 947 [2006]; Schuler, The Liberalization of Posthumous Paternity Testing—Expanding the Rights of Illegitimate Children, 17 Quinnipiac Prob LJ 150, 150-151 [2003]). Matter of Davis did not create, or interpret legislation creating, a new substantive right. Rather, it imposed a court-made exacting standard of proof previously not applied to pretrial disclosure. In doing so, Matter of Davis created an anomaly by imposing the standard of proof applicable to the ultimate issue in controversy on the party seeking to obtain pretrial disclosure of the most reliable evidence essential to meeting its burden of proof on the ultimate issue. Indeed, the consequence of such a rule of pretrial procedure may, under certain circumstances, effectively deprive the party seeking disclosure from establishing his or her entitlement to the remedy created by the statute. Under these particular circumstances, the application of the doctrine of stare decisis is less compelling. Accordingly, we take this opportunity to reexamine our holding in Matter of Davis (cf. People v Taylor, 9 NY3d 129 [2007]; Matter of Eckart, 39 NY2d 493, 499, 502 [1976]).

As with all requests for court-ordered discovery (see e.g. Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]), when considering the reasonableness of an application for court-ordered genetic marker testing in a proceeding to establish inheritance rights pursuant to EPTL 4-1.2 (a) (2) (C), we recognize that special consideration must be given to the sensitive and sometimes competing interests inherent in these proceedings. Accordingly, we adhere to our holding in Matter of Davis only to the extent it requires a party seeking court-ordered posthumous genetic marker testing to provide some evidence that the decedent openly and notoriously acknowledged paternity prior to obtaining an order authorizing such testing (see Matter of Davis, 27 AD3d at 128-129; see also Turano, 2006 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 4-1.2, 2007 Cum Pocket Part, at 128). However, to the extent our holding in Matter of Davis requires a party seeking posthumous genetic marker testing to prove such an acknowledgment by clear and convincing evidence, it should no longer be followed because it sets the evidentiary threshold too high.

EPTL 4-1.2 (a) governs, inter alia, the circumstances under which a nonmarital child will have established his or her standing...