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Biserka v. Zdenko

Appellate Division of the Supreme Court of New York, Second Department
Oct 19, 1987
133 A.D.2d 728 (N.Y. App. Div. 1987)

Opinion

October 19, 1987

Appeal from the Supreme Court, Queens County (Corrado, J., Graci, J.).


Ordered that the order is affirmed, with costs.

The Supreme Court properly applied the principle of equitable estoppel to bar the appellant from asserting that the respondent is not the father of her child. The child was born while the appellant and the respondent were married and living together; the respondent was named as the child's father in the birth and baptismal certificates, in the separation agreement and in the judgment of divorce; the appellant held the child out, by her words and deeds, as the son of the respondent throughout the marriage, the separation period and for nearly three years after the parties were divorced. During the last two of those years, the appellant was married to the putative father. Thus, the appellant created an opportunity for the development of a father-son relationship between the respondent and the child. Having concealed for eight years the purported "true" paternity of the child, the appellant is now estopped from contesting the respondent's paternity (see, e.g., Matter of Montelone v. Antia, 60 A.D.2d 603; State of New York ex rel. H. v. P., 90 A.D.2d 434; Matter of Boyles v. Boyles, 95 A.D.2d 95).

Even if equitable estoppel had been found to be inapplicable to the circumstances presented, the appellant's application would properly have been denied by reason of her failure to rebut the presumption of legitimacy (see, Commissioner of Public Welfare of City of N.Y. v. Koehler, 284 N.Y. 260; Matter of Findlay, 253 N.Y. 1; Dawn B. v. Kevin D., 96 A.D.2d 922; Matter of Joan G. v Robert W., 83 A.D.2d 838).

Finally, the court properly exercised its discretion in declining to order a blood test of the respondent (Matter of Montelone v. Antia, supra). Thompson, J.P., Brown, Rubin and Harwood, JJ., concur.


Summaries of

Biserka v. Zdenko

Appellate Division of the Supreme Court of New York, Second Department
Oct 19, 1987
133 A.D.2d 728 (N.Y. App. Div. 1987)
Case details for

Biserka v. Zdenko

Case Details

Full title:BISERKA B., Appellant, v. ZDENKO R., Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 19, 1987

Citations

133 A.D.2d 728 (N.Y. App. Div. 1987)

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