Schleimer v. Swann

• Citation: 402 N.Y.S.2d 897,93 Misc.2d 520
• Parties: In the Matter of Joan SCHLEIMER, D.S.S. o/b/o Joyce McCoy, Petitioner, v. Dennis SWANN, Respondent.
• Decision Date: 24 February 1978
• Court: New York City Court

Page 897

402 N.Y.S.2d 897

93 Misc.2d 520

In the Matter of Joan SCHLEIMER, D.S.S. o/b/o Joyce McCoy, Petitioner, v. Dennis SWANN, Respondent.

Family Court, Rockland County.

Feb. 24, 1978

John Franklin, Asst. County Atty., New City, for petitioner.

Audrey Ruben, New City, for respondent.

DECISION ON MOTION

HOWARD MILLER, Judge.

The within motion is made on behalf of the respondent brought to dismiss the petition due to the petitioner mother failing to appear for blood tests with the child upon the appointed time. The matter was adjourned for trial. The respondent has also served on December 29th, 1977 a demand for a Bill of Particulars upon the petitioner's attorney. As of the date hereof, no Bill has been filed by the petitioner's attorney nor has any motion been filed for a protective order.

The respondent has denied the allegations contained in the petition dated August 18, 1977. The within petition is filed eight and one-half years after the child concerned was born on April 30, 1969.

It is axiomatic in paternity proceedings by reason of the consequences involved and the nature of the matter that it is difficult to confront the challenge of the petitioner seeking to find that the respondent is the father of the child born out-of wedlock. The evidence to establish paternity must convince to the point of "entire satisfaction" (Matter of HH v. Lawrence II, 1972, 31 N.Y.2d 154, 335 N.Y.S.2d 274, 286 N.E.2d 717; Commissioner v. Fields, 1966, 25 A.D.2d 504, 266 N.Y.S.2d 681; Tree v. Ralston, 1970, 62 Misc.2d 582, 308 N.Y.S.2d 229; Commissioner v. Wiener, 1962, 15 A.D.2d 744, 224 N.Y.S.2d 154).

Sidney B. Schatkin in his book Disputed Paternity Proceedings, Fourth Edition (Revised), § 3.14, page 3-28 states:

". . . blood tests have conclusively established that 30% Of the men accused in the City of New York, who deny paternity and demand the tests, are actually not the father."

At the present time, the cases involving the paternity of a child hold that a blood test, properly conducted, fully exonerates a man whose blood tests have shown him not to be the father of the child concerned in the proceeding (Anon v. Anon, 1956, 1 A.D.2d 312, 150 N.Y.S.2d 344; Zaskorski v. Luizzo, 1956, 3 A.D.2d 659, 159 N.Y.S.2d 686).

In the case at bar on December 27, 1977 the respondent herein denied the allegations contained in the petition and requested blood groupings. The Court accordingly ordered the appropriate blood test to be made by the mother, child, and respondent pursuant to § 532 Family Court Act.

The petitioner has failed to appear and to submit to such blood tests. The respondent's right to a blood test has thus been denied by the petitioner ( § 532 Family Court Act; § 3121 CPLR). The Family Court Act is silent as to the procedure where such order for blood test is not complied with, other than contempt under § 156 Family Court Act. Therefore, the Court will follow the appropriate practices provided in the CPLR ( § 165 Family Court Act). Said § 165 Family Court Act further provides that the CPLR

". . . shall apply 'to the extent that they are appropriate to the proceedings involved.' "

(Schwartz v. Schwartz, 1965, 23 A.D.2d 204, 206, 259 N.Y.S.2d 751, 753).

Appropriateness of the application of the CPLR as the same applies to the case stems from the:

". . . numerous and unusual situations which arise in the Family Court will depend upon the circumstances of the cases as they arise . . ."

(Schwartz v. Schwartz, supra)

and the same Court concluded that:

"Procedure is to be used as a working tool and not as an impediment to the functioning of the Family Court."

(...