Torino v. Cruz
| Citation | 369 N.Y.S.2d 291,82 Misc.2d 684 |
| Parties | In the Matter of the Paternity Petition of Matilda TORINO, * Petitioner, v. Angel CRUZ, * Respondent. Family Court, Bronx County |
| Decision Date | 27 May 1975 |
| Court | New York Family Court |
Licht & Margolis by Michael M. Laufer, New York City, for respondent.
In this paternity proceeding pursuant to Family Court Act Article 5, the Court must decide what legal effect to give conflicting blood grouping test reports, only one of which excludes respondent as the father of petitioner's out-of-wedlock child.
The instant paternity petition was filed in July, 1971. Responde denied that he was the father of petitioner's infant, and requested a blood grouping test, which was performed by Dr. Robert L. Rosenthal. A report dated November 18, 1971 was sent to this Court in which Dr. Rosenthal listed the tests performed and the results obtained, and in which he stated: 'Paternity is excluded by the MN groupings.' 2
On January 12, 1972, the Court ordered a second blood grouping test at the request of the Assistant Corporation Counsel who represented the petitioner. Respondent was present without counsel and the record does not reveal any objection made by him. 3 The results of this second blood test, performed by Dr. Alexander S. Wiener, were non-exclusionary. Dr. Wiener found that child's blood to be positive for the factor N, whereas Dr. Rosenthal's test had shown the child's blood to be negative for the factor N. 4
Thereafter, in April, 1972, respondent's attorney requested that a third blood grouping test be made by yet a different doctor selected from the Court's list, 5 and pursuant to Court order, Dr. Richard E. Rosenfield performed a blood grouping test which again failed to exclude respondent.
On May 16, 1972, the Court ordered a fourth test. The report of this final test was signed by both Dr. Rosenthal and Dr. Rosenfield and did not exclude respondent as the possible father of petitioner's child. The report, dated October 21, 1974, stated, in part:
2. If weak but otherwise satisfactory anti-N reagents are used, the child types as M which, on the basis of a two allele genetic hypothesis, would exclude the type N putative father. We used four examples of rabbit anti-N and all four weakly distinguished the child from normal type M control blood. Two weaker rabbit anti-N, and an extract of Vicia graminea seeds, did not distinguish the child from normal type M. Nonetheless, the child must be considered as type MN2. This does not exclude the putative father because he could be N/N2.
When the matter came on for hearing, this Court, upon stipulation of the parties, admitted into evidence the results of all the blood tests performed and heard expert testimony for the purpose of determining whether or not respondent could be adjudged excluded.
Dr. Robert L. Rosenthal testified that he has been licensed to practice medicine since 1947; that he is a hematologist affiliated with Mount Sinai and Queens General Hospitals; and that he is in charge of the Hematology Department at Joint Diseases Hospital as well as Associate Clinical Professor at Mount Sinai Hospital. Dr. Rosenthal testified that he performs between 150 and 200 blood grouping tests per year, many by order of the Family Court, and that he has been performing such tests for more than 20 years. Dr. Rosenthal described the testing methods he uses and the precautions he takes to avoid erroneous identification of the parties or mislabelling of the blood samples.
In October, 1974, Dr. Rosenthal repeated his tests after learning that the tests conducted by two other doctors contradicted his results. His additional tests produced the same exclusionary result each time The petitioner called Dr. Alexander S. Wiener as her witness and respondent conceded his qualifications as an expert. Dr. Wiener is one of the foremost hematologists and serologists in the country, and a pioneer in the development and use of blood grouping tests in disputed paternity proceedings. 8 Dr. Wiener testified that he has done thousands of blood grouping tests, about three-fourths of which were ordered by the Family Court.
they were done. The explanation given by Dr. Rosenthal for the difference between his test results and those of the other doctors was that he used a weaker anti-N reagent than did the other two doctors. According to Dr. Rosenthal, the serum, or reagent, which he used was obtained commercially, whereas the sera used by those doctors he termed 'super-specialists' were made by the doctors themselves and were more sensitive and therefore more accurate. 6 Dr. Rosenthal testified further that if more sensitive sera were to be used in lieu of commercial sera in all blood tests made by court order, the results in many cases would be different. 7
Dr. Wiener identified his report, which did not exclude respondent, and described the tests he had performed on the blood of petitioner, respondent and the infant. At the time the tests were performed, Dr. Wiener had not known of the previous test conducted by Dr. Rosenthal. Dr. Wiener testified that he used sera he had made himself which were more sensitive and of higher quality than sera available commercially. Dr. Wiener stated that there was more chance for an erroneous result with commercial sera and therefore he makes his own. According to Dr. Wiener, commercial sera contain fewer antibodies, have a slower reaction time and are generally of lower caliber. He testified that Dr. Rosenfield, who performed the third blood grouping test on these parties, also makes his own sera. Dr. Wiener described the method he uses in running control tests on blood samples of known specificities so that errors are precluded. He further testified that the child herein had a rare subtype of the factor N, namely N2, but that his non-exclusionary results were reached without this information, which was given to him later by Dr. Rosenfield and which he independently verified. Lastly, Dr. Wiener testified that it After considering the four blood grouping test reports and the expert testimony of two serologists, the Court holds that respondent cannot be excluded as the father of petitioner's child. The doctor who performed the first test conceded that his exclusionary result may have been an error caused by the use of reagents which were weaker and less sensitive than those used in the subsequent, non-exclusionary tests, and he signed a later report in which he concurred with the non-exclusionary result.
was possible to predict the probability that respondent was the father, but that he had not made such a computation. 9
The Court, finding that respondent cannot be excluded, is bound by F.C.A. § 532, discussed Supra, to disregard the non-exclusionary blood test results and to consider only the proof adduced by the parties. There is no prejudice in taking non-exclusionary blood test reports into evidence so long as the Court does not consider them in reaching its decision. People v. Kelly, 20 A.D.2d 740, 246 N.Y.S.2d 877 (3rd Dep't). 10 Indeed, in actual practice in New York City, non-exclusionary blood grouping test results are part of the record, available to the trial judge, in virtually every contested filiation proceeding. Even were the Court to avoid examining the test results in the record, it would have to be presumed in almost every case that a blood test had been performed and that the matter would not have come to trial if the results had been exclusionary.
Petitioner testified that she was a single woman and that she met respondent through her brother, who played in the same band in which respondent performed as a singer. Petition stated that she and respondent were acquaintances, that they never went out together, never had a meal alone together, but that they had four sexual contacts--two in the summer of 1969 in a friend's car at 3:00 or 4:00 A.M. after dances, once in January, 1970, at petitioner's home, and once at the end of February or beginning of March, 1970, in Puerto Rico. It was this last sexual act which petitioner claimed caused her pregnancy and the subsequent birth of a daughter on December 25, 1970, when petitioner was 20 years old.
Petitioner testified that her last menstrual period before the baby's birth was at the end of February or beginning of March, that it lasted 6 or 7 days, and that it ended before she arrived in Puerto Rico on a Friday. On cross-examination, petitioner placed the date of her arrival in Puerto Rico as February 27, 1970. Petitioner further testified that she was a virgin until her first sexual act with respondent and that she had no sexual contacts with any other man until after the birth of the baby.
Petitioner contended that her baby was post-mature and had been born approximately 300 days after conception. She called, as an expert witness, Dr. Gabriel Kirschenbaum, who served for 16 years on the staff of Greenpoint Hospital in the Department of Gynecology and Obstetrics. Dr. Kirschenbaum testified that it was entirely possible, although he refused to say how probable, that a baby conceived at the end of February, 1970, could be born on December 25, 1970. He conceded that a 300 day pregnancy...
To continue reading
Request your trial
-
D'Elia on Behalf of Maggie M. v. Douglas B.
...Harris v. Doley, 22 A.D.2d 769, 253 N.Y.S.2d 645; Tilson v. Bark, 52 Misc.2d 338, 275 N.Y.S.2d 600 (Fam.Ct.N.Y.Co.1966); Torino v. Cruz, 82 Misc.2d 684, 369 N.Y.S.2d 291 (Fam.Ct., Bronx Moreover, article 5, Sec. 544, is clear that an order of filiation may be abrogated by a later judgment o......
-
People v. Emmons
...17, rev. on other grds. 197 N.Y. 64, 90 N.E. 340; Matter of Levine v. Levine, 60 A.D.2d 652, 400 N.Y.S.2d 555; Matter of Torino v. Cruz, 82 Misc.2d 684, 369 N.Y.S.2d 291). In United States v. Johnson, supra, an example of the fourth category, the inadvertent loss of the results of a breatha......
-
Cheryl B v. Alfred W. D
...as a matter of law. Matter of Schleimer v. Swann, 93 Misc.2d 520, 402 N.Y.S.2d 897, (Fam.Ct.Rockland Co.1978); Matter of Torino v. Cruz, 82 Misc.2d 684, 369 N.Y.S.2d 291, (Fam.Ct.Bronx Co.1975). The court in Matter of Department of Social Services v. Reese, 95 Misc.2d 629, 408 N.Y.S.2d 248,......
-
Carol B. v. Felder R. J.
... ... See, e. g., Torino v. Cruz, 82 ... Misc.2d 684, 369 N.Y.S.2d 291 (Bronx Co. Fam.Ct., 1975) ... Respondent's argument that a second court ordered ... ...