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Grivas v. Port Auth. of N.Y. and New Jersey

Appellate Division of the Supreme Court of New York, First Department
May 2, 1996
227 A.D.2d 105 (N.Y. App. Div. 1996)

Summary

In Grivas v. Port Auth. (227 A.D.2d 105), this Court held that pursuant to the provisions of EPTL 4-1.2 (a) (2) (A), a post-humous order of filiation declaring the decedent to be the child's father is insufficient, by itself, to establish the child's status as a qualified distributee entitled to have a wrongful death action brought on her behalf.

Summary of this case from Lancaster v. 46 N.Y.L Partners

Opinion

May 2, 1996

Appeal from the Supreme Court, New York County (William Davis, J.).


While we disagree with the IAS Court that plaintiff administratrix has come forward with proof of paternity sufficient to support the cause of action for wrongful death brought on behalf of the non-marital child and sole distributee of the deceased putative father, we do find the proof sufficient to at least raise an issue of fact as to paternity, and accordingly affirm denial of the motions for summary judgment. Under EPTL 5-4.5, the right of a non-marital child to recover in an action for the wrongful death of his or her father is coextensive with the child's right to inherit from the father under EPTL 4-1.2. Under EPTL 4-1.2 (a) (2) (A), a non-marital child can inherit from his or her father if a court has made an order of filiation declaring paternity during the lifetime of the father. Accordingly, the posthumous order of filiation issued by Family Court, Queens County, declaring the decedent to be the child's father, is insufficient, by itself, to establish the child's status as a qualified distributee entitled to have a wrongful death action brought on her behalf. However, EPTL 4-1.2 (a) (2) specifies other circumstances under which a non-marital child can inherit from his or her father, including, under clause (C), clear and convincing evidence of paternity and the father's open and notorious acknowledgment of the child as his own. As the IAS Court pointed out, this latter qualifying standard is virtually the same as that required to prevail in a posthumous paternity proceeding under Family Court Act § 519 (d) ( see, Matter of Commissioner of Social Servs. v. Philip De G., 59 N.Y.2d 137, 141-142). Accordingly, we accept the order of filiation as proof of paternity sufficient at least to defeat the motions for summary judgment. In any event, plaintiff came forward with other proof of paternity, including, most significantly, the deposition testimony of the child's mother of exclusive access by the decedent ( see, Fitzgerald v. Tamola, 199 A.D.2d 122, 123), sufficient to raise issues of fact.

Concur — Murphy, P.J., Milonas, Williams, Tom and Mazzarelli, JJ.


Summaries of

Grivas v. Port Auth. of N.Y. and New Jersey

Appellate Division of the Supreme Court of New York, First Department
May 2, 1996
227 A.D.2d 105 (N.Y. App. Div. 1996)

In Grivas v. Port Auth. (227 A.D.2d 105), this Court held that pursuant to the provisions of EPTL 4-1.2 (a) (2) (A), a post-humous order of filiation declaring the decedent to be the child's father is insufficient, by itself, to establish the child's status as a qualified distributee entitled to have a wrongful death action brought on her behalf.

Summary of this case from Lancaster v. 46 N.Y.L Partners
Case details for

Grivas v. Port Auth. of N.Y. and New Jersey

Case Details

Full title:GLORIA GRIVAS, Individually and as Administratrix of the Estate of…

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

Date published: May 2, 1996

Citations

227 A.D.2d 105 (N.Y. App. Div. 1996)
641 N.Y.S.2d 646

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