Opinion
1971
October 22, 2002.
Decree, Surrogate's Court, Bronx County (Lee Holzman, S.), entered November 20, 2001, which, inter alia, granted petitioner's motion for summary judgment to the extent of determining that petitioner is the daughter and sole distributee of decedent Ralph Cipriani, revoked letters of administration issued to respondent Gary Cipriani, directed respondent Cipriani to account, and granted petitioner letters of administration, with related relief, unanimously affirmed, with costs.
James F. Cirrincione, for petitioner-respondent.
Andrew N. Krinsky, for respondents-appellants.
Before: Tom, J.P., Ellerin, Lerner, Rubin, Gonzalez, JJ.
Although the statutory presumption of legitimacy (see Domestic Relations Law § 24[a]) does not apply in the absence of proof that the child was born of both parents (see Matter of Thomas S. v. Robin Y., 209 A.D.2d 298, 305, appeal dismissed 86 N.Y.2d 779), such proof is found in the instant record in decedent's 1963 admission of paternity in a duly filed and accepted application to amend petitioner's birth certificate. While inquiry into the circumstances of such an admission may sometimes be warranted (see Matter of Cheryl B. v. Alfred W.D., 99 Misc.2d 1085, 1088), no such inquiry is needed herein. If appellants' version of the facts is accepted, decedent gratuitously acknowledged that petitioner was his own biological daughter. He was not under compulsion to do so (cf. Hansom v. Hansom, 75 Misc.2d 3, 7) and had nothing to gain by doing so, other than the satisfaction of a sincere desire to legitimize petitioner's birth. The Surrogate therefore properly regarded this admission as clear and convincing evidence that petitioner is decedent's daughter, and did not improperly make credibility determinations on the motion and cross motion for summary judgment (cf. Baseball Office of the Commr. v. Marsh McLennan, Inc., 295 A.D.2d 73, 81 742 N.Y.S.2d 40, 47). Appellants' defense of laches is without merit (compare Matter of Cortland County Dept. of Social Servs. v. Thomas ZZ, 141 A.D.2d 119, 122, with Matter of Lorie F. v. Raymond F., 239 A.D.2d 659).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.