Merrill v. Ralston

• Decision Date: 28 July 1983
• Citation: 465 N.Y.S.2d 507,95 A.D.2d 177
• Parties: Chloe Valentine Ralston MERRILL, an infant under the age of 18 years by her mother and natural guardian ad litem, Suzanne E. Merrill, Plaintiff-Appellant, v. Douglas RALSTON, Defendant-Respondent. Suzanne E. MERRILL, Petitioner-Appellant, v. Douglas RALSTON, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 507

465 N.Y.S.2d 507

95 A.D.2d 177

Chloe Valentine Ralston MERRILL, an infant under the age of

18 years by her mother and natural guardian ad

litem, Suzanne E. Merrill, Plaintiff-Appellant, v. Douglas RALSTON, Defendant-Respondent.

Suzanne E. MERRILL, Petitioner-Appellant, v. Douglas RALSTON, Respondent-Respondent.

Supreme Court, Appellate Division First Department.

July 28, 1983.

Suzanne Merrill, pro se.

Anthony J. Ferrara, New York City, of counsel (Austin V. Campriello, New York City, with him on the brief; Ferrara & Campriello, New York City, attorneys), for defendant-respondent.

Before CARRO, J.P., and SILVERMAN, BLOOM, FEIN and KASSAL, JJ.

FEIN, Justice.

Petitioner commenced a paternity proceeding in Family Court in 1979. The petition was dismissed after trial in July 1980 for failure to prove paternity by clear and convincing evidence. We affirmed unanimously without opinion in November 1982 (90 A.D.2d 997, 456 N.Y.S.2d 1016). While the appeal was pending, § 532 of the Family Court Act was amended, effective March 2, 1981, to admit the results of the Human Leucocyte Antigen blood tissue tests (HLA) as positive evidence in the determination of paternity at the request of either party (L.1981, c. 9, §§ 2-3).

In July 1981, petitioner moved to reopen her paternity proceeding in Family Court, requesting an order that respondent be directed to submit to an HLA test. The Family Court judge concluded the new law was applicable to this case because it was enacted while the appeal was pending. Because she concluded the Supreme Court had already ordered an HLA test for respondent, in petitioner's related declaratory judgment action, the judge ruled that petitioner "may submit the results of that test" to the Family Court (emphasis added). The judge's decision, dated October 16, 1981, indicated that the source of her conclusion that there had been such a Supreme Court order was petitioner's affidavit of August 17, 1981. However, the Supreme Court order directing respondent to submit to an HLA test was not granted until September 18, on default of the defendant (respondent). Although this preceded the Family Court order, the judge was misled in concluding that the Supreme Court had directed an HLA test prior to August 17, 1981.

It is undisputed that thereafter, in March 1982, upon presentation of what was accepted as a valid excuse for his default which had resulted in the September 1981 Supreme Court order directing him to submit to an HLA test, respondent obtained a vacatur of that prior order. Justice Kirschenbaum then dismissed the Supreme Court complaint on the ground of res judicata, in deference to the prior Family Court adjudication finding lack of proof of paternity, without prejudice to petitioner's application in Family Court for an order to compel respondent to submit to an HLA blood test. When petitioner so moved, Family Court Judge McDonald, in September 1982, influenced by the Supreme Court's recent vacatur of respondent's default and dismissal of the action there, rejected petitioner's belated attempt to reopen the Family Court proceeding for relief based on the new statute. It is this order which we reverse on appeal.

The Family Court judge acknowledged the great validity and value of HLA tests in establishing paternity and that HLA test results would be admissible as evidence in cases where the trial or proceedings were still pending at the time of enactment of the amendment to § 532 (Matter of Carmen I. v. Robert K., 109 Misc.2d 259, 439 N.Y.S.2d 801; Matter of Jane L. v. Rodney B., 108 Misc.2d 709, 438 N.Y.S.2d 726). In a prior opinion in the latter case she had urged the adoption of such legislation (Jane L. v. Rodney B., 103 Misc.2d 9, 425 N.Y.S.2d 235). However, she was reluctant to give "unlimited retroactivity" to the amendment in our case because it had been tried two years earlier and dismissed eight months prior to the effective date of the amendment. We disagree.

Whether an amendatory statute is to be given retroactive application depends upon the legislative intent and whether the amendment involves procedural or remedial matters as opposed to substantive rights (Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453; Matter of Clayton v. Clement, 33 N.Y.2d 386, 353 N.Y.S.2d 173, 308 N.E.2d 690; Simonson v. International Bank, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427). Prospective application is the rule "unless the contrary is clearly to be divined" (Matter of Beary v. City of Rye, supra, 44 N.Y.2d at 410, 406 N.Y.S.2d 9, 377 N.E.2d 453; Matter of Clayton v. Clement, supra; Matter of Mulligan v. Murphy, 14 N.Y.2d 223, 250 N.Y.S.2d 412, 199 N.E.2d 496; Sessa v. State, 63 A.D.2d 334, 408 N.Y.S.2d 547, affd. 47 N.Y.2d 976, 419 N.Y.S.2d 972, 393 N.E.2d 1044, McKinney, Consol.Laws of N.Y., Book 1, Statutes §§ 51, 52). However, it is well established that "the procedure in an action is governed by the law regulating it at the time any question of procedure arises. * * * [T]he legislature may change the practice of the court and * * * the change will affect pending actions in the absence of words of exclusion." (Lazarus v. Metropolitan El Ry Co., 145 N.Y. 581, 585, 40 N.E. 240; Matter of Clayton v. Clement, supra.) The rule we deal with here is one of evidence, a matter of procedural law adopted by a statute having immediate application by its terms (Matter of Jane L. v. Rodney B., supra, 108 Misc.2d 709, 438 N.Y.S.2d 726). It is entitled to be deemed effective as of the date of the proceedings (Matter of Clayton v. Clement, supra; Lazarus v. Metropolitan El Ry. Co., supra; Matter of Boyle, 208 Misc. 942, 951, 145 N.Y.S.2d 386).

The admissibility of blood test evidence is a rule of evidence (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908). As that case holds, a properly administered mandatory blood test does not offend the constitution and constitutes only a minor intrusion when warranted under the circumstances (384 U.S. at pp. 767-768, 86 S.Ct. at 1833-1834). The existing law authorized blood testing. The 1981 amendment instituting a more accurate blood test was not a change that affected a substantial right (see Matter of Catherine H. v. James S., 112 Misc.2d 429, 431, 447 N.Y.S.2d 109).

In her October 1981 order the Family Court judge granted petitioner's motion to reopen the proceedings in the interest of conserving judicial effort, noting that the motion was timely because CPLR 2221, respecting a motion affecting a prior order, anticipated an application made within the time limitations for taking an appeal, and not a motion the purpose of which was designed to extend the time to appeal (Matter of Van Vleck v. Klein, 50 Misc.2d 622, 623, 271 N.Y.S.2d 64). Judge McDonald continued:

"The law in effect at the time of appeal will govern the appellate court; and if, as seems clear, the appellate court will apply the new law so as to expand the admissible evidence, it is proper, as a measure of efficient use of judicial time and parties' litigation resources, for the nisi prius court to apply the same law to reconsider its own decision, saving the need to perfect the appeal."

With respect to that appeal, nothing changed between the time of the Family Court judge's October 1981 decision and her subsequent decision eleven months later. The appeal was still pending here, not yet perfected. The judge rendered her October 1981 decision in the belief that there was then in existence a Supreme Court order dated prior to August 17, 1981, directing respondent to submit to an HLA test. The fact is there was such a Supreme Court order in existence as of the date of the Family Court October 1981 order, albeit the Supreme Court order was dated September 18, 1981 and the information provided by petitioner in her August 1981 affidavit on that motion had been premature. In this regard the only change that had taken...