Opinion
13438
11-06-2014
In re KERRY S., Petitioner–Respondent, v. AVELDA B., Respondent–Appellant.
Geoffrey P. Berman, Larchmont, for appellant. Jo Ann Douglas, New York, for respondent. John R. Eyerman, New York, attorney for the child.
Geoffrey P. Berman, Larchmont, for appellant.
Jo Ann Douglas, New York, for respondent.
John R. Eyerman, New York, attorney for the child.
SWEENY, J.P., ANDRIAS, SAXE, RICHTER, FEINMAN, JJ.
Opinion Order of filiation, Family Court, New York County (Monica Shulman, Referee), entered on or about March 6, 2013, declaring petitioner to be the biological father of the subject child, unanimously affirmed, without costs.
Respondent mother initially consented to having a DNA test performed to determine whether petitioner was the child's biological father, and the test found there was a 99.99% probability that petitioner is the biological father of the child. She then raised an equitable estoppel defense based on the presence in the child's life of another man who acted as a “father figure” for the child. The attorney for the child did not assert equitable estoppel on the child's behalf, because the child would not be harmed, whatever the test determined. The Referee properly found that it was in the child's best interests to deny respondent's motion, without a hearing, because respondent presented no evidence that the child would suffer irreparable loss of status, destruction of his family image, or other harm to his physical or emotional well-being if the proceeding were permitted to go forward (see Matter of Todd S. v. Lauri B., 110 A.D.3d 526, 974 N.Y.S.2d 349 [1st Dept. 2013] ; Matter of David G. v. Maribel G., 93 A.D.3d 526, 940 N.Y.S.2d 590 [1st Dept.2012] ; Matter of Derrick H. v. Martha J., 82 A.D.3d 1236, 1238–1239, 922 N.Y.S.2d 83 [2d Dept.2011] ).
Contrary to respondent's contention, under Family Court Act § 532, DNA test results which indicate at least a 95% probability of paternity were not only admissible, but create a rebuttable presumption of paternity (see Matter of Commissioner of Social Servs. of City of N.Y. v. Hector S., 216 A.D.2d 81, 84, 628 N.Y.S.2d 270 [1st Dept.1995] ; Matter of Beaudoin v. Robert A., 199 A.D.2d 842, 844, 606 N.Y.S.2d 402 [3d Dept.1993] ). Accordingly, the certified DNA test results were properly admitted into evidence and relied upon by the Referee (CPLR 4518[c] ; Matter of Angela L. v. Edward B., 237 A.D.2d 359, 360, 654 N.Y.S.2d 418 [2d Dept.1997] ).