Opinion
April 29, 1998
(Appeal from Order of Supreme Court, Monroe County, Fisher, J. — Vacate Judgment.)
Present — Green, J.P., Lawton, Hayes, Pigott, Jr., and Balio, JJ.
Order unanimously affirmed without costs. Memorandum: The parties were married in May 1986 and divorced in February 1992. During the marriage one child was born, on April 29, 1989. The separation agreement, incorporated into the judgment of divorce, identifies that child as the only "child of the marriage" and resolves issues of custody, visitation and child support. In December 1996 defendant moved for an order setting aside the judgment of divorce on the grounds of newly discovered evidence and fraud ( see, CPLR 5015 [a] [2], [3]) and directing plaintiff and the child to submit to blood tests for the purpose of determining paternity ( see, CPLR 3121 [a]). The motion is grounded upon defendant's belated discovery that plaintiff, during the pregnancy, falsely represented that the results of an amniocentesis performed by her gynecologist established defendant's paternity.
Supreme Court properly denied the motion. A judgment "'purporting to settle something as fundamentally important as the paternity of a child is not susceptible of vacatur' upon anything but 'newly discovered evidence strongly indicative of a result different than the one previously reached'" ( Matter of Beaudoin v. Robert A., 199 A.D.2d 842, 844, quoting Matter of Rosa v. Diaz, 136 A.D.2d 512, 514). Evidence that plaintiff falsely advised defendant of the results of a prenatal paternity test that was never performed does not strongly indicate that defendant is not the child's father ( cf., Elizabeth A. P. v. Paul T. P., 199 A.D.2d 1030; Queal v. Queal, 179 A.D.2d 1070). In view of the strong presumption of legitimacy ( see, Matter of Findlay, 253 N.Y. 1, 7; David L. v. Cindy Pearl L., 208 A.D.2d 502, 503) and proof that the parties had sexual relations during the period of probable conception ( see, Fung v. Fung, 238 A.D.2d 375; Vito L. v. Filomena L., 172 A.D.2d 648, 651), plaintiff's misrepresentation does not warrant vacatur of the divorce judgment on the ground of newly discovered evidence ( see, CPLR 5015 [a] [2]).
Nor does plaintiff's misrepresentation warrant relief from the judgment on the ground of fraud ( see, CPLR 5015 [a] [3]). It is undisputed that defendant was on notice of plaintiff's infidelity six months prior to the child's birth and of the possibility that he was not the child's father ( see, Richard B. v. Sandra B. B., 209 A.D.2d 139, 144-145, lv dismissed 87 N.Y.2d 861, rearg denied 89 N.Y.2d 982). Further, evidence that plaintiff lied about the amniocentesis does not establish that she also lied about the child's true parentage. Plaintiff has never taken the position that anyone but defendant is the child's father ( cf., Queal v. Queal, supra).
The court also properly denied defendant's application for an order compelling plaintiff and the child to submit to blood tests. Given the delay of over 7 1/2 years from the child's birth to defendant's application, it was incumbent upon defendant to proffer more than conjecture that the boy is not his child ( see, Matter of Thomas v. Rosasco, 226 A.D.2d 800, 801; Matter of Erie County Dept. of Social Servs. [Cebelle J.] v. Vaughn W., 197 A.D.2d 924; Matter of Director of Suffolk County CSEB v. Eugene B., 148 A.D.2d 535). Proof of plaintiff's misrepresentation is not the same as proof that defendant is not the child's father ( cf., Elizabeth A. P. v. Paul T. P., supra; Queal v. Queal, supra).
Finally, "[w]hile there are certain equitable considerations militating in [defendant's] favor, in the final analysis it is the child's best interests which are paramount" ( Matter of Richard B. v. Sandra B. B., supra, at 143; see, Fung v. Fung, supra; Vito L. v. Filomena L., supra, at 650). The desirability of allowing the child to know whether defendant is his father is outweighed by the benefit to the child in preserving his legitimacy and the bond that has developed with the only father he has ever known ( see, Matter of Sharon GG. v. Duane HH., 95 A.D.2d 466, 469, affd 63 N.Y.2d 859 for reasons stated below; Matter of Richard W. v. Roberta Y., 240 A.D.2d 812, lv denied 90 N.Y.2d 809; Matter of Glenn T. v. Donna U., 226 A.D.2d 803; Matter of Barbara A. M. v. Gerard J. M., 178 A.D.2d 412, 413). Thus, the court properly declined to direct plaintiff and the child to submit to a "blood test [that] would have the potential to brand the child illegitimate without setting the issue of paternity" ( Fung v. Fung, supra, at 376).