Salvatore S. v. Anthony S.

• Citation: 58 A.D.2d 867,396 N.Y.S.2d 872
• Parties: In the Matter of Salvatore S. (anonymous). SALVATORE S. (anonymous), Appellant, v. ANTHONY S. (anonymous) et al., Respondents.
• Decision Date: 18 July 1977
• Court: New York Supreme Court Appellate Division

Page 872

396 N.Y.S.2d 872

58 A.D.2d 867

In the Matter of Salvatore S. (anonymous).

SALVATORE S. (anonymous), Appellant, v. ANTHONY S. (anonymous) et al., Respondents.

Supreme Court, Appellate Division, Second Department.

July 18, 1977.

Joseph Canzoneri, Franklin Square, for appellant.

Spanakos & Spanakos, Brooklyn (William M. Spanakos, Brooklyn, of counsel), for respondent Anthony S. (anonymous).

Before HOPKINS, J. P., and RABIN, HAWKINS and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a proceeding inter alia to declare that petitioner is the father of a certain infant, petitioner appeals from an order of the Supreme Court, Nassau County, dated January 6, 1977, which, on the court's own motion, transferred the proceeding to the Family Court, Nassau County.

Order reversed, on the law, without costs or disbursements, and it is directed that the action be tried in the Supreme Court.

Petitioner commenced this action for a declaratory judgment in order to determine the status of a child who was born on August 5, 1976. Petitioner alleges that he, and not the mother's husband, is the child's father.

At the time the action was commenced petitioner could not have brought it in the Family Court. However, section 522 of the Family Court Act was amended, effective January 1, 1977, so as to permit a putative father to commence a paternity proceeding. Pursuant to this amendment, Special Term transferred the proceeding to the Family Court, determining that it was more appropriate for the proceeding to be handled in that court.

Section 522 was enacted not only to protect the welfare of a child born out of wedlock, but to indemnify the government for the expense of supporting the child (see Matter of J. (Anonymous), 50 A.D.2d 890 377 N.Y.S.2d 530; Matter of Roe v. Roe, 65 Misc.2d 355, 316 N.Y.S.2d 94). Since the statute was primarily intended to insure that the child be financially provided for by the putative father and not the State, the effect of an order of filiation on the child's status is limited. "The order made in such a proceeding does not constitute an adjudication binding on them (the child or husband) or persons claiming through or under them that the child is or is not the legitimate offspring of married parents * * * It does not establish the status of the child nor would it be competent evidence to establish illegitimacy in any proceeding to which others are parties" (Commissioner of Public Welfare of City of N. Y. v. Koehler, 284 N.Y. 260, 267, 30 N.E.2d 587, 590; see, also, Matter of Melis v. Department of Health of City of N. Y., 260 App.Div. 772, 24 N.Y.S.2d 51).

The purpose of this action is to determine the status of the child and to determine the rights of all interested parties; a declaratory judgment action is the appropriate method to resolve the issues in this case. Therefore, the proceeding should not have been transferred to the Family Court (cf. Matter of Melis v. Department of Health of City of N. Y., supra, at p. 775, 24 N.Y.S.2d at p. 54).

RABIN, HAWKINS and O'CONNOR, JJ., concur.

HOPKINS, J. P., dissents and votes to affirm the order, with the following memorandum:

By petition and order to show cause petitioner seeks in equity a judgment declaring that he and not the husband is the father of a child born to the wife. In such a case, the concern of equity...