Nassar on behalf of Brosemer v. Lake

• Decision Date: 14 May 1984
• Citation: 476 N.Y.S.2d 248,124 Misc.2d 248
• Parties: In the Matter of the Paternity Petition of Michael J. NASSAR, Commissioner, Oneida County Department of Social Services, on behalf of Patricia BROSEMER, Petitioner, v. Stephen LAKE, Respondent.
• Court: New York Family Court

Page 248

476 N.Y.S.2d 248

124 Misc.2d 248

In the Matter of the Paternity Petition of Michael J.

NASSAR, Commissioner, Oneida County Department of

Social Services, on behalf of Patricia

BROSEMER, Petitioner, v. Stephen LAKE, Respondent.

Family Court, Oneida County.

May 14, 1984.

Anthony Murad, Utica, Counsel, Oneida County Dept. of Social Services, for petitioner.

Antonio Faga, Utica (Keith A. Eisenhut, Utica, of counsel), for respondent.

DECISION

HUGH A. GILBERT, Acting Judge.

Prior to March 2, 1981, blood grouping tests were admissable in paternity cases only for the limited purpose of definitely excluding a respondent from being the father of the subject child. Since that date, the human leucocyte antigen blood tissue test, commonly designated as an HLA test, may be received in evidence to aid in the determination of whether a respondent is or is not such father. Family Court Act 532(a). The original concept was that this "test is highly accurate on the issue of paternity and should be employed to avoid unnecessary litigation." Matter of Karen K v. Christopher D, 86 A.D.2d 633, 634, 446 N.Y.S.2d 346, 347 (1982).

As denoted in the instant factual situation, however, uncertainties and inconsistencies are emerging at the pre-trial and trial level of paternity proceedings which may severely delay this objective.

The results of the human leucocyte antigen blood tissue test have been deemed to have a high degree of probative value. They are to be afforded great weight by the bench and the bar. Matter of Bowling v. Coney, 91 A.D.2d 1195, 1196, 459 N.Y.S.2d 183, 194 (1983); Matter of Kimiecik v. Daryl E., 87 A.D.2d 284, 285, 452 N.Y.S.2d 717, 718 (1982). The overall standard of proof in a paternity proceeding is that paternity must be established by clear, convincing and entirely satisfactory evidence. Such evidence must create a genuine belief that respondent is the father of the subject child. Matter of Commissioner of Social Services v. Philip DeG, 59 N.Y.2d 137, 141-142, 463 N.Y.S.2d 761, 450 N.E.2d 681 (1983); Matter of Piccola v. Hibbard, 51 A.D.2d 674, 378 N.Y.S.2d 163 (1976); aff'd. 40 N.Y.2d 1035, 391 N.Y.S.2d 855, 360 N.E.2d 355 (1976). Applying the general maxim of the HLA test to, and reconciling it with, this standard of proof is emerging as an uncertain and inconsistent procedure.

An initial difficulty is defining which test the legislature intended to recognize as having such high degree of accuracy that it could be received for the establishment of paternity, rather than merely the exclusion of a putative father. As in the instant factual situation, two tests are sometimes submitted to the attorneys and then to the Court. One establishes a probability of paternity of 92.57 percent, "using the HLA system". The other establishes a probability of paternity at 98.87 percent "using the HLA system, along with ABO, RH, MNSS, Kell, Duffy, and Kidd". The attorneys and trial courts are confronted with different testing procedures and varying testing results. One reasonable interpretation is that only the former may be considered until the legislature defines the phrase "human leucocyte antigen blood tissue test" more broadly or accurately. Matter of Lorraine M v. Linwood M.S., 115 Misc.2d 922, 455 N.Y.S.2d 48 (1982). The alternative reasonable interpretation is that the legislature intended the courts to have any additional testing results which could assist in resolving the issue with greater accuracy. Matter of Commissioner of Social Services v. James S, 112 Misc.2d 429, 447 N.Y.S.2d 109 (1982); Matter of Pratt v. Victor B, 112 Misc.2d 487, 448 N.Y.S.2d 351 (1982). See also Matter of Department of Social Services v. Thomas J.S., 100 A.D.2d 119, 123, 474 N.Y.S.2d 322 (1984). Until this issue is resolved, the attorneys will not be able to evaluate properly such tests and the goal of curbing unnecessary litigation will not be realized. Furthermore, contradictory judicial decisions will be fostered.

In addition to guidance as to the selection of an appropriate test, the lack of specific interpretive criteria should be considered. What do the various degrees of probability mean? In our factual situation, the pure HLA test not only lists the probability of paternity as 92.57 percent, but also refers to a combined paternity index of 12 to 1, whereas the combined test has a probability of 98.87 percent and an index of 88 to 1. How significant are these differences? What interpretation should the bar and bench give if only one of those tests were before it? "Advancing medical technology has produced tests which offer the opportunity to resolve paternity disputes with more accuracy than unaided traditional evidentiary techniques are likely to obtain. Proper understanding of the test results, however, require statistical reasoning with which courts are typically unfamiliar." Ellman and Kaye, "Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?", 54 New York University Law Review 1131, 1161 (December 1979).

Should a table setting forth categories of the likelihood of paternity be legislatively or judicially adopted? One such table, as appeared in the March 1981 edition of the New York Journal of Medicine, at page 343, would define the respondent herein "very likely" to be the father pursuant to the combined test and "likely" pursuant to the pure HLA test. See also Matter of Commissioner of Social Services v. James S, 112 Misc.2d 429, 447 N.Y.S.2d 109 (1982); Matter of Pratt v. Victor B, 112 Misc.2d 487, 448 N.Y.S.2d 351 (1982); Department of Social Services v. Kenneth S.N., 120 Misc.2d 453, 466 N.Y.S.2d 147 (1983). However, another table would determine...