A.T. v. M.K.

• Decision Date: 20 October 1989
• Citation: 145 Misc.2d 525,547 N.Y.S.2d 510
• Parties: In the Matter of the Paternity Proceeding, A.T., Petitioner, v. M.K., Respondent.
• Court: New York Family Court

Page 510

547 N.Y.S.2d 510

145 Misc.2d 525

In the Matter of the Paternity Proceeding A.T., Petitioner, v. M.K., Respondent.

Family Court, Westchester County.

Oct. 20, 1989.

Edward D. Loughman, III, of Muldoon, Horgan & Loughman, New Rochelle, for petitioner.

John S. Kommer, of Marcus, Ollman & Kommer, New Rochelle, for respondent.

Charles McGoey, New Rochelle, for H.T.

BRUCE E. TOLBERT, Judge.

In this proceeding in Family Court, petitioner seeks an order of filiation declaring respondent M.K. to be the father of the infant child, M.T. (d.o.b. 1/28/86). Petitioner brings the instant motion for summary judgment declaring paternity on the ground that respondent is collaterally estopped from denying paternity based upon the decision of the Hon. Gerard E. Delaney in a defamation suit between these two parties in Supreme Court.

In the Supreme Court action, plaintiff M.K., respondent herein, and his wife sought $1,000,000.00 in damages for slander against A.T., petitioner herein, who allegedly made the statement, "M.K. is the father of M.T." By decision dated February 14, 1989, the Hon. Gerard E. Delaney, Supreme Court Justice, held that the results of a DNA (deoxyribonucleic acid) test which indicate a probability of paternity of 99.993% are sufficient as a matter of law to warrant summary judgment dismissing the slander claim (King v. Tanner, 142 Misc.2d 1004, 539 N.Y.S.2d 617 [Sup.Ct., Westchester County 1989]. That Court further held that common-law standards of proof for defamation are applicable, and DNA test results are, in and of themselves, sufficient to rebut the presumption of legitimacy in circumstances as these, where Ms. T. was married to another at the time of conception (King v. Tanner, supra, at 1005, 539 N.Y.S.2d 617).

By motion dated May 2, 1989, plaintiffs M. and R.K. sought to reargue and renew the prior decision. Having submitted only an attorney's affidavit in opposition to Ms. T.'s previous motion for summary judgment, plaintiffs offered, in support of their motion to reargue and renew, their individual affidavits and the affidavit of Dr. Leon Sussman, a recognized expert in paternity testing. The Court refused to consider said affidavits as "new" evidence, the only truly new evidence being the results of additional blood tests (including HLA tests) submitted to the Court in a report dated May 30, 1989. Said multiple blood tests excluded H.T., A.T.'s husband, from being the biological father, and showed M.K. to have a probability of paternity of 99.98%. By decision dated August 9, 1989, Justice Delaney, having found no reason to depart from his original decision, denied the motion to reargue and renew except to the extent the Supreme Court considered the HLA blood test report.

In seeking an order of filiation, petitioner T. contends that, pursuant to the doctrine of collateral estoppel, the determination of paternity made by Supreme Court prevents respondent from relitigating the issue of paternity in the instant proceeding in Family Court.

Collateral estoppel holds that, as to parties or those in privity, a judgment on the merits by a court of competent jurisdiction is conclusive in a subsequent action as to issues of fact or law necessarily decided in the prior action (Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328). This doctrine precludes a party from relitigating in a subsequent action the same issue necessarily raised and decided in a prior action whether or not the tribunals or causes of action are the same (Ryan v. New York Telephone, 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984]; see also, Gramatan Home Investors Corp. v. Lopez, supra, 46 N.Y.2d at 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328; Ripley v. Storer, 309 N.Y. 506, 517, 132 N.E.2d 87). Underlying this doctrine is the notion that it is not fair to permit a party to relitigate an issue which has previously been decided against him in a proceeding in which he had an opportunity to fully litigate the point ( Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49, 423 N.E.2d 807 [1981]. Based not only on notions of fairness, this doctrine also serves to conserve judicial resources as well as the resources of the litigants ( Gilberg v. Barbieri, supra, 53 N.Y.2d at 291, 441 N.Y.S.2d 49, 423 N.E.2d 807).

In order to apply the doctrine of collateral estoppel, the New York Court of Appeals has held that two requirements must be met: "there must be an identity of issue which has necessarily been decided in the prior action and is decisive in the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling" (Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 [1969] [emphasis added]. Among the factors to be weighed by the court in determining whether a party against whom the doctrine is asserted had a full and fair opportunity are as follows: the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in applicable law, and the foreseeability of future litigation (Schwartz v. Public Administrator of County of Bronx, supra, at 72, 298 N.Y.S.2d 955, 246 N.E.2d 725).

With regard to the first requirement, identity of issue, both the defamation action in Supreme Court and the paternity suit in Family Court involve the identical issue of whether or not M.K. is the father of the subject child. The issue of paternity was necessarily decided in the prior actions by Justice Delaney in order to reach his determination that the statement claimed to be slanderous was, in fact, true, thereby constituting a valid defense to the slander suit. A determination of paternity is certainly decisive of the present action as this is the actual claim being litigated in this proceeding.

Although identity of issue exists, this Court finds that the respondent successfully met his burden of demonstrating that the doctrine of collateral estoppel is inapplicable in the instant case because of a lack of full and fair opportunity to litigate the matter. Respondent contends that he was denied such opportunity in the defamation action when the Court there found that he had failed to produce evidentiary proof in admissible form. His sole submission in opposition to the summary judgment motion had been an affirmation of his attorney. That respondent failed to oppose the motion sufficiently is immaterial as even a default judgment may be given preclusive effect (Fredericks v. Truck Transervice, Inc., NYLJ, Sept. 26, 1989, at 28, col. 6; see also, Mitchell v. Insurance Co. of North America, 40 A.D.2d 873, 338 N.Y.S.2d 92 [2d Dept. 1972]. Moreover, respondent subsequently submitted personal affidavits and an expert's affidavit in his motion to reargue and renew. What this Court does find persuasive on this issue is that the Supreme Court found irrelevant, and declined to consider, issues which would have been heard in a paternity hearing in Family Court. The difference in the standards of proof in a cause of action for slander and in a paternity suit require additional evidence to be considered in a paternity proceeding.

In the defamation action between these parties, the Court held that common-law standards of proof apply to a slander action such as this one, involving a private person on a matter of private concern (King v. Tanner, supra). At common law, once the plaintiff established that the defendant was "at fault" in publishing the defamatory falsehood (Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789), defendant had the burden of proving in defense that the statement was true (Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379-380, 397 N.Y.S.2d 943, 366 N.E.2d 1299 [1977]. Defendant T., therefore, had the burden of proving by a fair preponderance of the credible evidence the truth of the alleged slanderous statement (King v. Tanner, supra, 142 Misc.2d at 1010, 539 N.Y.S.2d 617). In a paternity suit, however, the petitioner must establish paternity by clear and convincing evidence, evidence which is completely satisfactory and which creates a genuine belief that the respondent is the father of the child (Matter of Jane PP v. Paul QQ, 65 N.Y.2d 994, 494 N.Y.S.2d 93, 484 N.E.2d 122 [1985]; see also, Commissioner of Social Services v. Philip De G., 59 N.Y.2d 137, 463 N.Y.S.2d 761, 450 N.E.2d 681 [1983].

Although the "clear and convincing" standard of proof is higher than the proof by a "preponderance of the credible evidence" standard normally required in civil cases, petitioner T. contends that preclusive effect should be given to the determination in the first action since the issue of paternity was decided there in accordance with the higher standard. In his decision, Justice Delaney recognized that, before a finding of paternity can be made, the degree of...