Venus B. v. Danillo S.

• Decision Date: 20 January 1982
• Citation: 112 Misc.2d 195,446 N.Y.S.2d 894
• Parties: In the Matter of the Paternity Petition of VENUS B., Petitioner, v. DANILLO S., Respondent.
• Court: New York Family Court

Page 894

446 N.Y.S.2d 894

112 Misc.2d 195

In the Matter of the Paternity Petition of VENUS B., Petitioner, v. DANILLO S., Respondent.

Family Court City and County of New York.

Jan. 20, 1982.

Fran Lubow, Asst. Corp. Counsel, New York City, for petitioner.

Joseph F. DeFelice, Richmond Hill, for respondent.

DECISION ON MOTION

TURRET, Judge:

In a paternity proceeding filed on March 24, 1981, 4 years after the birth of the child, the respondent alleged father moves to dismiss on the ground that the proceeding is time-barred pursuant to FCA § 517. The petitioner's opposition is based on her allegation that respondent, by actions constituting an informal acknowledgment of paternity, fraudulently induced her to forego legal proceedings until the statutory time limit had been passed. Petitioner seeks her "day in court" so as to offer evidence demonstrating respondent's alleged acknowledgment of paternity.

Respondent's motion to dismiss must be granted. Conceding, for purposes of deciding this motion, that petitioner's proffered evidence will establish respondent's acknowledgment, by his actions, that the child is his own, the fact remains that such acknowledgment does not meet the standards set in FCA § 517.

The common law deemed a child born out of wedlock filius nullius--"no man's son." The paternity created by statute must be strictly limited to the legislative authorization. Section 517 provides that actions by the child's mother

"shall not be brought after the lapse of more than two years from the birth of the child unless paternity has been acknowledged by the father in writing or by furnishing support...." (emphasis added).

The legislature has provided only two means of demonstrating paternal acknowledgment: (1) by a writing, and (2) by a showing of support. Petitioner's offer of proof does not meet either criterion.

The legislature's decision to limit acknowledgment to these two forms does not seem unreasonable. A writing traditionally serves not only to preserve the statement made, but to formalize it. In our society, now as in centuries past, one who "puts it in writing" knows that he may at a later date be called to account. Presumably he reflects before signing on the truth and accuracy of the statement and the wisdom of committing his signature to it. In contrast, words and actions generally occur more spontaneously, with less consideration of future consequences.

The case law interpreting the statutory language concerning the acknowledgment-by-support puts a similarly weighty gloss on the language, by requiring that payments of money to the child's mother be more than occasional gifts, that they be clear and unequivocal indications of the man's willingness to assume his duty to support his out-of-wedlock child. Vicki B. v. David H, 73 A.D.2d 645, 422 N.Y.S.2d 742 (2nd Dept. 1979), Shirley D. v. Ricardo B, 54 A.D.2d 564, 387 N.Y.S.2d 21 (2nd Dept. 1976), Theresa J. v. Troy M, 89 Misc.2d 909, 392 N.Y.S.2d 199 (Fam.Ct.N.Y.Co., Kram, J.) The legislature has required a showing of acknowledgment based on either a writing or a financial commitment, two methods traditionally recognized in our society as offering an indication of serious, reliable intent to create an obligation.

Petitioner further urges that FCA § 517(c) is unconstitutional; that restricting her to a two-year statute of limitations, while permitting the putative father to file a paternity petition at any time up until the child's eighteenth birthday amounts to unlawful discrimination against herself and the child. The court cannot agree, for the following reasons:

First, it should be noted that the purpose of any statute of limitations is to put the party on notice that he faces a legal complaint. The interests in apprising the parties of the events and transactions in question, in preserving evidence, and in promptly resolving legal disputes are all served, generally, by the statutes limiting the time for commencement of a proceeding. It could be that in a particular case, a just and fair trial can be had even after the period of limitations has been exhausted, and, indeed, a party may waive his objection based on the statute of limitations. CPLR 3018(b), 3211(e). (See also Howard v. Robinson, 32 A.D.2d 837, 302 N.Y.S.2d 347 (2nd Dept. 1969) which construed the provisions of FCA 517(a) not merely as a statute of limitations that can be waived, but as a condition precedent, affecting the very existence of the cause of action: "Petitioner may not prevail ... unless she alleges and proves that 'paternity has been acknowledged by the father in writing or by furnishing support' ".) There is no requirement that an objecting party must show that he is in fact prejudiced by the passage of time. On the contrary, he is entitled to the protection of the statute of limitations regardless of whether or not he is actually inconvenienced. At this time, since the recent amendments to FCA 532 permitting the court to receive blood test evidence that is...