Opinion
October 7, 1992
Appeal from the Erie County Family Court, Trost, J.H.O.
Present — Boomer, J.P., Green, Balio, Fallon and Davis, JJ.
Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Petitioner failed to meet his burden of establishing paternity by "`clear and convincing' evidence, evidence which is `entirely satisfactory' and creates a genuine belief that [petitioner] is the father of the child" (Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d 137, 141-142).
HLA blood tests were administered by the two expert witnesses, Dr. James Mohn and Dr. Nancy Cunningham. The HLA blood test is highly accurate on the issue of paternity and is entitled to great weight (Swann v Schoenfield, 163 A.D.2d 850, 851, lv dismissed sub nom. Nicholas S. v Schoenfield, 76 N.Y.2d 889; Matter of Niagara County Dept. of Social Servs. v Sanders, 156 A.D.2d 939, 940). The tests showed the probability of petitioner's paternity to be 89.96%, which Dr. Mohn characterized as "borderline." Based upon his analysis of the HLA test results, Dr. Mohn concluded that it is "quite unlikely" that petitioner is the child's father. Similarly, Dr. Cunningham testified that petitioner is probably not the father of the child.
The HLA tests results, considered in light of all the evidence (see, Matter of Denise H. v John C., 130 A.D.2d 748; Matter of Julie UU. v Joseph VV., 108 A.D.2d 1038, 1039), warrant dismissal of the petition. In addition to the expert testimony, the record contains credible evidence that the mother engaged in sexual relations with several men at the time of conception. Coupled with the very low probability HLA test results, proof that the mother had intercourse with men other than petitioner during the critical period compels the conclusion that petitioner failed to establish paternity by clear and convincing evidence (see, Matter of Jane PP. v Paul QQ., 65 N.Y.2d 994, 996).