Nancy M.G. v. James M.

• Decision Date: 27 March 1989
• Citation: 539 N.Y.S.2d 458,148 A.D.2d 714
• Parties: In the Matter of NANCY M.G. (Anonymous), Appellant, v. JAMES M. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 458

539 N.Y.S.2d 458

148 A.D.2d 714

In the Matter of NANCY M.G. (Anonymous), Appellant, v. JAMES M. (Anonymous), Respondent.

Supreme Court, Appellate Division Second Department.

March 27, 1989.

Carol L. Barbash, New City, for appellant.

Glickman & McAlevey, New City (Anne L. Glickman, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to Family Court Act article 5 to establish paternity and for an order of support, the appeal is from an order of the Family Court, Rockland County (Bergerman, J.), dated July 31, 1987, which, after a hearing, dismissed the petition.

ORDERED that the order is reversed, on the law and the facts, with costs, the petition is granted to the extent of adjudging the respondent to be the father of the subject child, and the matter is remitted to the Family Court, Rockland County, for a dispositional hearing on the issue of support.

Although we are reluctant to disturb findings of fact made by a hearing court on the basis of conflicting evidence and involving issues of the credibility of witnesses (see, Matter of Constance G. v. Herbert Lewis L., 119 A.D.2d 209, 210, 506 N.Y.S.2d 111; Matter of Joan G. v. Robert W., 83 A.D.2d 838, 441 N.Y.S.2d 709), we conclude upon our review of the record that the court's findings in this case are contrary to the weight of the credible evidence ( see, Matter of Bernadette C. v. Jossival St. V., 128 A.D.2d 774, 513 N.Y.S.2d 474).

At the hearing, the petitioner introduced the results of a human leucocyte antigen (hereinafter HLA) test which combined with the testing for other genetic markers indicated a 98.72% likelihood of paternity of the respondent. Although the HLA test has not yet been recognized as conclusive evidence of paternity (see, Family Ct. Act § 532; Matter of Denise H. v. John C., 135 A.D.2d 816, 522 N.Y.S.2d 920; cf., Matter of David CC. v. Rose GG., 142 A.D.2d 797, 530 N.Y.S.2d 335), we place great reliance upon such test results as being highly accurate and carrying a high degree of probative value on the issue of paternity (see, e.g., Matter of Constance G. v. Herbert Lewis L., supra, 119 A.D.2d at 212, 506 N.Y.S.2d 111; Matter of Department of Social Servs. v. Thomas J.S., 100 A.D.2d 119, 124, 474 N.Y.S.2d 322). Nor do we find that the highly accurate HLA test results coupled with the tests for other genetic markers were seriously undermined by the testimony of the respondent's expert which placed a lesser degree of probability upon such test results. As even our dissenting colleague notes, that expert acknowledged he held a minority view as to how HLA testing should be analyzed.

The record further contains the unrebutted testimony of the petitioner that during the critical time period she had no sexual relations with any man other than the respondent. Notably in this regard, the hearing court made no determination in its ruling that the petitioner's testimony was incredible and, therefore, should not be credited (compare, Matter of Department of Social Servs. v. Richard A., 121 A.D.2d 382, 503 N.Y.S.2d 92; Matter of Harstein v. Mike S., 107 A.D.2d 684, 484 N.Y.S.2d 39). The Family Court in determining the weight to be given the HLA test results appeared to give undue consideration to the date of conception estimated by the respondent's expert to be February 3, 1985, a deviation of approximately two weeks from the date the petitioner testified she met the respondent and first engaged in sexual intercourse with him. This date is controverted by the petitioner's testimony that her last menstrual period occurred in early February. The dissent considers this two-week differential to be determinative on the issue of paternity. The courts have held that the date of conception need not even be established to a medical certainty (Matter of Margie L. v. Gary M., 50 A.D.2d 1009, 377 N.Y.S.2d 225; Greenberg v. Colman, 32 A.D.2d 913, 302 N.Y.S.2d 381, affd. 28 N.Y.2d 960, 323 N.Y.S.2d 701, 272 N.E.2d 76; Matter of Smith v. Lane, 101 Misc.2d 615, 622, 421 N.Y.S.2d 786) and, therefore, the difference between the estimated date of conception and the first date of intercourse at bar is not determinative. Certainly, such testimony standing alone is not determinative of paternity and should not be adopted as evidence of a lack of paternity to the exclusion of the highly reliable and accurate HLA test. The Family Court erred by according too much weight to the date of conception and too little to the HLA test results.

Support for our conclusion may be found in the recent decision of our colleagues in the First Department in the case of Tamara B. v. Pete F., App.Div., 536 N.Y.S.2d 767 in which the court held that "[g]iven the high degree of probative value courts have accorded HLA test results in paternity proceedings, [the] Family Court should have granted petitioner's motion to provide expert rebuttal testimony on the question of the appropriate statistical bases and analytic method to be applied in interpreting this test". The First Department reached this determination notwithstanding the fact that the Family Court had characterized the petitioner's credibility as being "very low" in general and her testimony of a continuing exclusive sexual relationship with the respondent as being incredible.

We assign further error to the Family Court's failure to consider the HLA test result of a nonparty with whom the petitioner lived during the subject pregnancy and with whom the respondent sought to suggest through cross-examination at the hearing the petitioner had sexual relations with on the night before she met the respondent. The HLA test result excluded the paternity of this nonparty and, thus, was highly relevant to the proceedings. Authority to consider voluntary medical examinations is provided pursuant to CPLR 4518 (see, Salicco v. Salicco, 125 Misc.2d 137, 143-144, 479 N.Y.S.2d 313). Such test results are not excludable as evidence in a paternity proceeding simply becau they were not court-ordered (Salicco v. Salicco, supra, at 145-146, 479 N.Y.S.2d 313).

In sum, we are satisfied that the petitioner succeeded in...