Salicco v. Salicco

• Decision Date: 10 July 1984
• Parties: Steven SALICCO v. Christina SALICCO.
• Court: New York Supreme Court

Page 313

479 N.Y.S.2d 313

125 Misc.2d 137

Steven SALICCO v. Christina SALICCO.

Supreme Court, Special Term Queens County, Part 5A.

July 10, 1984.

Sandback & Birnbaum, Garden City, for plaintiff.

Stanton Halpern, Long Island City, for defendant.

JOSEPH S. CALABRETTA, Justice.

The issues remaining in this action for divorce, for determination by this court, the parties having resolved the other issues by stipulation spread upon the record in open court, are: (1) Whether the results of a voluntary Human Leucocyte Antigen (HLA) blood test to determine paternity are admissible in evidence, and (2) If said voluntary tests are admissible herein, is plaintiff the father of the infant issue for the purposes of child support?

It appears to this court that the parties have chartered their own course by voluntarily submitting to the HLA test, and defendant is now seeking to negate the validity of said tests and her participation in same. She contends that the results of the HLA test of the parties is inadmissible because said tests were submitted to voluntarily rather than pursuant to court order. (See Family Court Act, § 418.)

The court commences an analysis of the issues armed with the strongest presumption in law as that of a child's legitimacy. (Matter of Findlay, 253 N.Y. 1, 170 N.E. 471.) This presumption is not conclusive, however, and it may be rebutted where to do otherwise would outrage common sense and reason (Anonymous v. Anonymous, 1 A.D.2d 312, 150 N.Y.S.2d 344). To permit the plaintiff in the case at bar to pursue and attempt to prove the illegitimacy of the child, Daniel Steven Salicco, born July 24, 1983, would not contravene the public policy of this State. Accordingly, the burden is on plaintiff to come forward with clear and convincing proof that he is not the father. (Matter of Anonymous v. Anonymous, NYLJ, Dec. 23, 1983, p. 14, col. 5.)

The circumstances leading up to the issues raised herein are as follows: Plaintiff-husband, by summons and verified complaint dated December 6, 1983, sought to obtain a judgment of divorce from the defendant-wife on the grounds of adultery pursuant to section 170(4) of the Domestic Relations Law. Defendant-wife, by her verified answer and counterclaim dated December 31, 1983, sought a judgment of divorce pursuant to section 170(1) of the Domestic Relations Law, alleging plaintiff-husband's cruel and inhuman treatment of defendant-wife. The parties entered into a stipulation spread upon the record in open court on March 23, 1984, wherein they resolved all ancillary issues including equitable distribution of the marital assets, except the issue of paternity, and left for the court's determination said issue and the determination of whether there are grounds sufficient for the granting of a divorce. The stipulation further provided that as to the paternity of the infant issue of the marriage, one Daniel Steven Salicco (born July 24, 1983), if the court should find plaintiff to be the father of the infant Daniel Steven Salicco, the court could set child support and a reasonable sum of maintenance for defendant-wife for a limited and designated period of time, said amount to allow her an opportunity to rejoin the employment market. However, if the court were to find that plaintiff is not the father of the infant Daniel, the court would be precluded from making any award for child support or maintenance for defendant-wife. (See transcript of stipulation dated March 23, 1984, pp. 3 & 4.)

By order of this court, dated March 30, 1984 (Calabretta, J.), and upon the consent of the parties, the court appointed a guardian ad litem, Cynthia H. Reiss, Esq., to protect the rights and interests of the infant Daniel Salicco. Said order further directed the guardian ad litem to interview the plaintiff and defendant, as well as any other person or persons said guardian deemed necessary. Further, all those persons interviewed were directed to produce any and all documents in their possession or available to them, including but not limited to birth certificate, hospital and medical files and such authorization so as to permit the guardian ad litem to obtain copies of hospital and Health Department records. The report of the guardian ad litem was received by the court on May 7, 1984. A hearing was held before this court on June 26 and 28, 1984, to determine the issue of paternity. The court reserved decision on the divorce pending the determination of paternity at the hearing held hereon.

The plaintiff and defendant were married in the County of Queens, City and State of New York, on April 21, 1979. The parties herein have at all times since their marriage, resided in the County of Queens, City and State of New York.

In 1982, plaintiff and defendant realized that they were having problems in conceiving a child. Defendant went to her doctor in January of 1982 regarding their fertility problems. Plaintiff went to see one Dr. Farrel in March, 1982. The parties separated in June, 1982, in part as an outgrowth of the fertility problems they were having. Plaintiff then went to see Dr. Lawrence Dubin in August, 1982. On September 6 or 7, 1982, Dr. Dubin performed a surgical procedure on plaintiff, a varicolectomy, to correct Mr. Salicco's problem diagnosed as having "left varicocele".

According to the Merck Manual of Diagnosis and Therapy (13th edition, 1977), pp. 747 et seq., "varicocele" is a condition which impedes the unobstructed flow of mature sperm through the seminal tract. Although the testes may be producing spermatozoa and some sperm may be deposited in the vaginal vault, sperm density is insufficient for fertilization. A surgical procedure known as a varicolectomy may be performed to correct such condition. The expected recovery period for this procedure is two to three months. During this time period, the system recovers from the trauma of surgery and new sperm mature. There is apparently a small possibility that already matured sperm in the tract can cause fertilization after the stitches are removed.

According to plaintiff's testimony, after their first separation in June, 1982, he returned to the marital residence for about ten days in mid-July of 1982, during which period the parties engaged in sexual intercourse and attempted a reconciliation. Plaintiff and defendant did not engage in intercourse in August or September of 1982, but, although they were not residing together, they did engage in sexual intercourse at least twice a week in October, November and December of 1982. In November, 1982, plaintiff's grandfather died and plaintiff stated that he and defendant saw each other more often after the death. Plaintiff stated that he was confused.

On or about December 14, 1982, defendant found out that she was two weeks pregnant, and informed the plaintiff. Plaintiff testified that he asked defendant if the child was his, and she replied, "Yes". Plaintiff requested that she have an abortion because of the marital problems the parties were having, and stated that her pregnancy was "bad timing". The court notes that the defendant's last menstrual period was the end of October beginning of November. Defendant did not want to have an abortion, and assured the plaintiff that the child was his. At defendant's request and because of her pregnancy, the parties reconciled and resumed cohabitation on January 1, 1983.

On or about May 12, 1983, defendant told plaintiff that there was "a possibility that the child was not his." Plaintiff testified that at this time defendant had informed him that she had been engaging in sexual intercourse (without the use of any birth control device) with another man, at his apartment regularly on most Friday nights between August, 1982 and the end of November, 1982. In defendant's conversations with the guardian ad litem, defendant confirmed the fact that she was indeed engaging in sex with another man during that period of her separation from her husband.

Defendant gave birth to Daniel Steven Salicco on July 24, 1983. Said infant was a full term baby, being born after nine months of gestation.

After the birth of the infant, plaintiff and defendant were desirous of obtaining blood tests to establish whether or not plaintiff was indeed the infant's father. The defendant testified that the plaintiff wished to share a blood test performed "only to clear his mind", and further, he stated to defendant, "that it wouldn't make any difference to him if the child wasn't biologically his."

On September 1, 1983, plaintiff, defendant and the infant Daniel went to see Dr. Leon N. Sussman at the Lindsay F. Kimball Research Institute of the New York Blood Center, located at 310 East 67th Street, New York, N.Y. Plaintiff testified that they had obtained the name of Dr. Sussman from an advertisement. At this juncture, the court notes that it is unquestionably clear that the parties mutually agreed and voluntarily participated in the HLA test to be set forth in more detail infra, and further, that they mutually agreed and consented to have the test performed on the infant Daniel.

Leon N. Sussman, M.D., F.A.C.P., a specialist in hematology and oncology, testified on behalf of the plaintiff regarding the laboratory testing procedures used in the preparation of his report and the results of the tests. Dr. Sussman is the Director of Kimball Research Institute, has been practicing medicine for over fifty years, and has published two books and 125 articles on paternity testing. He testified that the plaintiff, the defendant, and the child were tested at his clinic on September 1, 1983. The actual testing was performed by his assistants, who cross-checked their results in order to assure the accuracy of same. These results were then evaluated by the Doctor, who thereafter prepared and certified the report.

Dr. Sussman testified that his assistants drew blood from each of the individuals for the purpose of the HLA test, and inserted the blood drawn into...