Opinion
Index No. 59301/2022
07-26-2023
L.A.S., Plaintiff, v. P.M.M.S., Defendant.
Unpublished Opinion
James L. Hyer, J.
The following papers, numbered 1 to 15, were considered in connection with Plaintiff's Motion for an Order: (1) directing the parties and the minor child A.A.S. (DOB: xx/xx/2019), to undergo genetic testing/DNA; and (2) granting such other and further relief that the Court may deem just and proper, and Defendant's Cross Motion for an Order: (1) granting Defendant's motion for summary judgment, dismissing Plaintiff's adultery cause of action; (2) denying Plaintiff's motion to have a paternity test ordered by the Court; and (3) granting such other relief as the court deems just and proper.
PAPERS NUMBERED
Notice of Motion/Memorandum of Law in Support 1-2
Notice of Cross-Motion/Affirmation in Support of Cross-Motion/Exhibit A 3-5
Affirmation in Reply to Plaintiff's Motion and in Opposition to Defendant's
Cross Motion/*Affidavit/Exhibits A-C**/Affirmation in Reply to
Plaintiff's Motion and in Opposition to Defendant's Cross Motion*
Exhibits A-C** 6-13
Affirmation in Reply/Exhibit A 14-15
*These documents appear to be duplicate filings of the same document.
** These documents appear to be duplicate filings of the same document.
PROCEDURAL HISTORY
Plaintiff commenced this action on April 14, 2022. At the time, Plaintiff was represented by counsel, with Plaintiff's filing of a Summons and Complaint (hereinafter referred to as the "Complaint"), asserting three causes of action whereby Plaintiff sought a Judgment of Divorce dissolving the parties' marriage including irretrievable breakdown of the marriage pursuant to DRL § 170(7), adultery pursuant to DRL § 170(4), and cruel and inhuman treatment pursuant to DRL § 170(1). The Complaint includes, in part, the following verified statements by Plaintiff:
L.A.S., by his attorney, ANTHONY J. PIERAGOSTINI, ESQ., as and for his Verified Complaint against DEFENDANT, P.M.M.S., respectfully alleges and shows as follows:
* * *
5. That there is one (1) issue of the marriage between the parties; to wit: A.A.S., born on xx/xx/2019 at Long Island Jewish Medical Center, Queens, New York.
* * *
13. That upon information and belief, DEFENDANT has committed the following acts of adultery:
A. With a person known as and believed to be A.M., occurring on a trip to Disney World in Orlando, Florida during the period of October 16 to 18, 2021, and at his home in Tampa, Florida on Halloween 2021. Where DEFENDANT and A.M. had met on a Tinder December 2, 2020 and met in person in July 2021 and went to Disney in October 2021; and
B. With a person named "M." or "J.M.", who resides in Tampa, Florida, where same occurred between November 2021 and between February 2022 (M. ended the relationship with DEFENDANT because she was posting gifts from other lovers on her social media on Valentine's Day) and at various places in and around Tampa, Florida; and the DEFENDANT'S apartment; and
C. With a person known to be C.S., who is Club Promoter, residing in the Tampa, Florida area, where said adultery took place during the period of time when DEFENDANT was in the Country of Columbia visiting he family, during the period November 14, 2019 to July 2020, when said C.S. visited DEFENDANT in Colombia; and during the period of time when C.S. and DEFENDANT vacationed alone in Porto Rico [sic], leaving the child of the parties at home in Tampa, Florida, occurring on or about November 2019 to July 2020; and
D. With various other men and persons, one of whom is known to be someone named "E.", where said acts of adultery occurred in Tampa, Florida; and upon information and belief, at the marital apartment, address above of DEFENDANT.
E. Said adultery is believed to be an ongoing conduct by DEFENDANT, since July 2020 to date.
14. DEFENDANT voluntarily committed said acts of sexual or devious sexual intercourse with said persons, and persons, other than PLAINTIFF; after the marriage of the PLAINTIFF and DEFENDANT.
* * *
WHEREFORE, PLAINTIFF respectfully demands Judgment against DEFENDANT dissolving the bonds of matrimony existing between PLAINTIFF and DEFENDANT, based upon the irretrievable breakdown of the marriage, pursuant to §170(7) of the DRL; the adultery committed by DEFENDANT, pursuant to DRL §170(4) and/or the cruel and inhuman treatment of PLAINTIFF by DEFENDANT, pursuant to DRL §170(1); and granting PLAINTIFF Judgment against DEFENDANT directing DEFENDANT being obligated to pay all debts arising out of her adultery regarding the marital property owned by the parties; granting PLAINTIFF reasonable attorney's fees in the prosecution of this action; granting PLAINTIFF equitable distribution of any marital assets; granting PLAINTIFF custody of the minor child of the parties; and for such other different and further relief as to this Court may deem just and proper, together with the costs and disbursements of this action.
On August 2, 2022, Defendant filed a Verified Answer with Counterclaims (hereinafter referred to as the "Answer"), admitting the allegation set forth in paragraph 5 of the Complaint and seeking a Judgment of Divorce dissolving the parties' marriage due to an irretrievable breakdown of the marriage pursuant to DRL § 170(7).
On August 10, 2022, the parties and counsel executed a Preliminary Conference Stipulation and Order which noted A.A.S. (DOB: xx/xx/2019), as a child of the marriage, but then noted under ancillary issues that are unresolved, "Paternity DNA Test of Child and Parents to Determine if Plaintiff is father."
On August 15, 2022, Plaintiff filed a Verified Reply, which included, in part:
WHEREFORE, PLAINTIFF demands Judgment of Divorce, pursuant to his Complaint and all the ancillary relief included therein, including custody of the minor child of the marriage, reasonable counsel fees and a distributive award of the marital assets; together with other relief that the Court deems just and proper.
On March 20, 2023, Plaintiff filed a Paternity Petition against Defendant, designated as Respondent in that proceeding, with the Westchester Family Court under File Number 168973, Docket Number P-02320-23, pertaining to A.A.S. (DOB: xx/xx/2019), (hereinafter referred to as the "Paternity Petition"). Within the Paternity Petition, Plaintiff made verified statements, in part:
3. I had sexual intercourse with the above-named Respondent during a period of time beginning on or about the 15th day of July 2018, and ending on or about the 19th day of August 2021.
* * *
5. I am requesting an order for genetic testing to determine the paternity of the child.
Notably, Plaintiff only partially completed paragraph 4 of the Paternity Petition which requests the child's name and date of birth. The paragraph clearly notes that the subject child was born "out of wedlock". Paragraph 4 of the Paternity Petition provides as follows:
4. [check applicable box]
a. - I OR - Respondent gave birth to [specify name of child:
- a male - female child out of wedlock on [specify date]:
b. - I OR - Respondent is now pregnant with a child who is likely to be born out of wedlock.
Further important, Plaintiff entirely disregarded paragraph 5 of the Paternity Petition requesting further information about the marital status of the subject child's mother, which provides as follows:
6. Upon information and belief, at the time of conception of the child, the mother
- was not married.
- was married to [specify]: ____, whose last known address is [specify]:
On April 7, 2023, the Court held a Compliance Conference entered an Order directing that:
1. Plaintiff s counsel shall file Note of Issue by April 14, 2023.
2. Both parties shall file updated Statements of Net Worth with required documents pertaining to the incomes of the parties, including, but not limited to, applications for imputation of income by April 14,2023.
3. Plaintiff s counsel shall file an Order of Consolidation of the Westchester County Family Court Paternity Proceeding, File No.:168973, Docket: 0-02320-23, by April 14, 2023.
4. Plaintiff shall file a motion seeking relief pertaining to the paternity of the marital child, and the briefing schedule set forth, on submission, no oral argument.
a. Motion shall be filed by April 21, 2023.
b. Opposition shall be filed by May 5,2023.
c. Reply to Opposition shall be filed by May 19, 2023.
A Note of Issue was filed on April 13, 2023. On April 14, 2023, a Consolidation Order was entered consolidating the Paternity Petition with this action.
In support of his Motion and in opposition to the Cross Motion, Plaintiff filed one Affidavit, wherein he states, in part, that (NYSCEF Doc. No. 51):
5. I met DEFENDANT in Queens, New York on or about July 15, 2018.
6. We started dating and having intimate relations on or about July 19, 2018, in Queens, New York.
7. That DEFENDANT moved in with me and we resided in Queens, New York on or about August through November 2018.
8. That DEFENDANT, after moving out of my apartment in November 2018, came back to live with me in January 2019 when she was five (5) months pregnant and showing her carrying the child, which was four (4) months before the child was born.
9. Prior to DEFENDANT and I being married on October 24, 2018, DEFENDANT worked in a bar to socialize and flirt with customers to keep the customers in the bar so they would spend money. The bar's name was "El Sol", in Jackson Heights, 104th Street (off Roosevelt Avenue), Queens, New York. DEFENDANT worked there as sort of a dancehall girl, or bar woman, to flirt with the men, entice them to stay with her to drink and spend money and did so for a period of time before our marriage, and before the child A.A.S., who was born on xx/xx/2019, and before she was conceived in August 2018, which was two (2) months before we were married.
10. I had many suspicions about DEFENDANT being a party girl and a barfly, but she wanted to do it, and she was earning cash money while working as bar woman.
* * *
25. With all of DEFENDANT/WIFE'S extra marital affairs, her cruel and inhuman treatment, her refusal to live with me, her prior history of being a bar woman and dancehall girl, working for cash in a bar and having many other men flirting with her; and the fact that she told me to my face that she didn't want to be with me and had sex with other men. I sincerely have my doubts.
26. Further, I have stated my Cause of Action for Adultery in my Complaint; and I have information presented to me from different persons verifying this adultery and the facts and circumstances of it. Various people who know her and men have stated to me the seriousness and prolonged adulteress conduct that DEFENDANT/WIFE has been involved with and the various men that she has been with.
27. I have seen that the other men have given DEFENDANT/WIFE money, have taken her out, have taken her on vacation to Disney World and to Puerto Rico and one man even went to her family in Columbia on a trip with her daughter, the minor child.
* * *
42. There is no doubt, after discussing the facts these men, that they had sexual relations with DEFENDANT while she was married to me, after she moved to Florida in July 2020 to date.
In the Memorandum of Law in Support of Plaintiff's Motion, Plaintiff's counsel makes several statements including, in part (NYSCEF Doc. No. 41):
4. We have the situation in this matter where DEFENDANT'S child was born on xx/xx/2019, when the parties were married * * *
* * *
17. The parties had been living together for a short period of time when DEFENDANT/WIFE moved out of the home in Queens, New York.
18. That the child of the parties, A.A.S., was born xx/xx/2019
19. Four (4) months before the child was born, and while DEFENDANT/WIFE was five (5) months pregnant, living separate from PLAINTIFF and having not lived with Plaintiff, DEFENDANT, moved back into PLAINTIFF'S apartment in Queens, New York being five (5) months pregnant.
20. Since the child was born xx/xx/2019, at a normal pregnancy, the baby was conceived somewhere in August 2018, over two (2) months before the parties were married. As stated above, they did not live together for a long period of time after the marriage.
21. Further, as alleged in PLAINTIFF'S Complaint, sworn to April 11, 2022, DEFENDANT worked at a bar in Queens, New York where her position was to flirt, dance, drink and keep the customers at the bar, basically socialize with them and entice them to spend money in the bar. She had such a job prior to the parties' meeting in 2018, and before their marriage in October 2018. During this period of time, it is alleged that DEFENDANT/WIFE was being paid from this bar by cash.
Defendant has not submitted any Affidavits with respect to either of the Motions pending before this Court. But, in support of her cross motion, Defendant submitted a Certificate of Birth for the subject child, issued by the City of New York, which lists Plaintiff as the child's father.
In Defendant's counsel's Affirmation in Support of Cross Motion, he notes, in part (NYSCEF Doc. No. 46):
28. In plaintiff's memorandum of law he alleges (without evidence) that plaintiff's Complaint indicates that before their marriage in 2018, Defendant "worked at a bar in Queens, New York where her position was to flirt, dance, drink and keep the customers at the bar, basically socialize with them and entice them to spend money in the bar." (See NYSEF Doc. 41 paragraph 21).
29. However, that allegation is not written anywhere in Plaintiff's Complaint.
30. Also, even if it were in Plaintiff's Complaint, being employed at a bar is not a basis for an adultery cause of action. New York law is clear that mere proximity is not sufficient without more evidence to support a claim of adultery. Agulnick v. Agulnick, 191 A.D.3d 12, 20, 136 N.Y.S.3d 462 (2020).
31. Plaintiff's submissions contain no allegations of any specific instances of adultery prior to the conception of the parties' child.
32. No such allegations exist in the entire record for this action.
33. In Plaintiff's memorandum of law, he alleges (without evidence) that in August 2021 (more than two years after the conception of the parties' child) that Defendant told Plaintiff that she "had sex with other guys." (See NYSEF Doc. 41 paragraph 30).
34. However, this affirmation from Plaintiff's attorney is nothing more than hearsay. Rosenblum v. Rosenblum, 181 Misc. 78, 84, 42 N.Y.S.2d 626, 631 (Sup. Ct. 1943)
35. Plaintiff has not provided an affidavit or deposition testimony of this alleged event or any events at all.
36. Also, neither spouse can be a witness against the other with respect to a claim of adultery. Lee v. Lee, 51 A.D.2d 576, 576, 378 N.Y.S.2d 459, 461 (1976), Eades v. Eades, 83 A.D.2d 972, 972, 442 N.Y.S.2d 815, 815 (1981), NY C.P.L.R. 4502 (McKinney).
37. Moreover, every instance of adultery that is alleged in Plaintiff's Complaint is alleged to have occurred between November of 2019 and February of 2022 i.e. long after the birth of Plaintiff and Defendant's only child (See NYSEF Doc. 1 paragraph 13).
38. Plaintiff's allegations of adultery occurring after the conception of the parties' child are wholly unsubstantiated.
39. Plaintiff's implication of possible adultery occurring before the conception of the parties' child is speculative and devoid of any specific claims of adultery.
40. Therefore, none of the instances of adultery that Plaintiff alleges in the record could have caused the conception of Plaintiff and Defendant's daughter even if those instances had occurred.
41. Incidentally, Plaintiff has not provided any documentation or evidence to establish that any of the alleged instances of adultery occurred and therefore, is unable to meet the clear and convincing evidence standard. Maroth v. Maroth, 64 N.Y.S.2d 260, 263 (Sup. Ct. 1946).
42. Moreover, even if any of the alleged instances of adultery are established to have occurred, all of them would have taken place long after the period in which the only child of the parties could have been conceived.
Plaintiff's counsel then notes in his Affirmation in Reply to Plaintiff's Motion and in Opposition to Defendant's Cross Motion, in part, that (NYSCEF Doc. No. 55):
10. The conduct of DEFENDANT prior to marriage cannot be termed "adultery" obviously since adultery is only having sexual relations with another party not whom one is not married to during the marriage. The actions of the parties before marriage may be cheating on one's boyfriend, lover or engaged fiancé, but cannot be adultery by definition.
11. The fact that PLAINTIFF stated to me that DEFENDANT "worked at a bar in Queens, New York" where her position was to flirt, dance, drink and keep the customers in the bar, basically socialize with them and entice them to spend money in the bar. DEFENDANT has such a job prior to the parties meeting in 2018, and well before the parties' marriage in 2018; but during the period in August 2018, when the child was conceived, being calculated as the start of a nine (9) month pregnancy period. This is a normal period of gustation [sic] obviously of a human child and there has been no allegation anywhere ever that the child was not carried to full term of nine (9) months.
12. Likewise, the fact that DEFENDANT was employed at the bar and to carry on such activities with men before marriage cannot be the basis of any adultery action, but raises issues, obviously, as been stated as to the paternity of the child; especially when considered with the post-marriage allegation of adultery and the living standards and course of conduct of DEFENDANT as alleged by DEFENDANT.
APPLICABLE LAW
The Appellate Division Second Department has described the presumption that exists as to children born during a marriage being a biological product of the marriage and the burden required to rebut that presumption:
In addition, a "child born during marriage is presumed to be the biological product of the marriage and this presumption has been described as one of the strongest and most persuasive known to the law" (Matter of Barbara S. v. Michael I., 24 A.D.3d 451, 452, 805 N.Y.S.2d 425 [internal quotation marks omitted]; see Matter of Findlay, 253 NY 1, 7, 170 N.E. 471; Matter of Walker v. Covington, 287 A.D.2d 572, 731 N.Y.S.2d 485; Murtagh v. Murtagh, 217 A.D.2d 538, 539, 629 N.Y.S.2d 78; David L. v. Cindy Pearl L., 208 A.D.2d 502, 503, 617 N.Y.S.2d 57). However, the notion that the presumption of legitimacy is conclusive, such that a "court would not listen to evidence casting doubt on [the] paternity" of a married woman's husband, was rejected long ago, as recognized by the Court of Appeals in Matter of Findlay, 253 NY at 7, 170 N.E. 471. Rather, the presumption "may be rebutted by clear and convincing evidence excluding the husband as the father or otherwise tending to disprove legitimacy" (Matter of Barbara S. v. Michael I., 24 A.D.3d at 452, 805 N.Y.S.2d 425; see Matter of Findlay, 253 NY at 7, 170 N.E. 471; Matter of Walker v. Covington, 287 A.D.2d at 572, 731 N.Y.S.2d 485; Murtagh v. Murtagh, 217 A.D.2d at 539, 629 N.Y.S.2d 78).(Marilene S. v David H., 63 A.D.3d 949, 950 [2d Dept 2009]).
"The presumption of legitimacy may be rebutted by clear and convincing proof of lack of access by the husband or other evidence excluding the husband as the father of the child" (Q.M. v B.C., 46 Misc.3d 594, 598 [Fam Ct, Monroe County 2014]; see also Matter of Marilene S. v David H., 63 A.D.3d 949; Matter of Cheryl A.B. v Michael Anthony D., 209 A.D.2d 966 [4th Dept 1994]).
A Decision entered by the Queens County Supreme Court provides a detailed analysis of what is required for a party to successfully rebut the presumption of legitimacy:
The presumption that a child born during marriage is the biological product of the union is "one of the strongest and most persuasive known to the law" (Matter of Findlay, 253 NY 1, 7 [1930]; see Walker v. Covington, 287 A.D.2d 572 [2d Dept 2001]; Fung v. Fung, 238 A.D.2d 375, 375-376 [2d Dept 1997]). Nevertheless "the presumption does not consecrate as truth the extravagantly improbable" (id. at 8). In other words, the presumption is not "intended to suppress the truth and perpetuate a falsehood" (Constance G v. Lewis L, 119 A.D.2d 209, 211 [2d Dept 1986] [internal citations omitted]). Rather, the presumption yields to "the sway of reason" and may be rebutted (Findlay, 253 NY at 7). Hence, the presumption prevails "unless common sense and reason are outraged by a holding it abides" (id.; see Constance G, 119 A.D.2d at 211). Clear and convincing evidence which excludes the husband as the father or otherwise tends to disprove the legitimacy of the child rebuts the presumption of legitimacy (see Walker, 287 A.D.2d at 572; Fung, 238 A.D.2d at 375-376). Where the presumption is rebutted, the court has authority to order a paternity test (see id. at 572-573; Fung, 238 A.D.2d at 376). Regardless, a party may invoke equitable estoppel as a defense to preclude the test (see id.; Fung, 238 A.D.2d at 376).
Equitable estoppel prohibits a person from asserting a claim that would prejudice another where he has led that other person to reasonably believe that he would not do so (see Juanita A v. Kenneth Mark N, 15 N.Y.3d 1, 5 [2010], citing Shondel J v. Mark D, 7 N.Y.3d 320, 326 [2006]). The law imposes equitable estoppel as a matter of fairness (see id.). Thus, where a man represents himself to be a child's father and it serves the child's best interests, equitable estoppel prevents him from denying paternity (see id., citing Shondel J, 7 N.Y.3d at 326; see also Derrick H v. Martha J, 82 A.D.3d 1236, 1238 [2d Dept 2011]). Equitable estoppel thereby protects "the status interests of a child in an already recognized and operative parent child relationship" (Shondel J, 7 N.Y.3d at 327). The paramount concern is the best interests of the child (see Derrick H, 82 A.D.3d at 1238; Walker, 287 A.D.2d at 572-573; Fung, 238 A.D.2d 376).
A husband must overcome the presumption of legitimacy as well as equitable estoppel to obtain a paternity test of a child born during marriage. Mere proof that the wife engaged in adultery is insufficient to rebut the presumption (see Constance G, 119 A.D.2d at 211). Indeed, where "husband and wife are living together in the conjugal relation, legitimacy will be presumed, though the wife has harbored an adulterer" (Findlay, 253 NY at 8). Proof of the wife's adultery in conjunction with conclusive proof of the husband's nonaccess (see Family Ct Act § 531), however, will suffice to rebut the presumption (see Constance G, 119 A.D.2d at 211 [evidence of "recurrent acts of intercourse" between the wife and another man coupled with "corroborated and unshaken proof negating access" by the husband refuted the presumption]).
Where the husband rebuts the presumption of legitimacy and has no relationship with the child, equitable estoppel will not preclude a paternity test (see Michaleas v. Michaleas, 136 A.D.3d 616 [2d Dept 2016]). For example, where uncontroverted evidence established that the wife had been in a sexual relationship with another man during the time that the three-year-old child was conceived; that the wife told the husband he was not the father; and that the husband had no relationship with the child, equitable estoppel did not bar genetic testing (id.). Similarly, where the husband filed for divorce shortly after learning of his pregnant wife's adulterous affairs and immediately disavowed paternity of the child, equitable estoppel should not have prevented a blood test (Murtagh v. Murtagh, 217 A.D.2d 538, 539 [2d Dept 1995]).
On the other hand, the husband's unsubstantiated claims that his wife had committed adultery and repeatedly told him that he was not the child's father failed to rebut the presumption of legitimacy (Fung, 238 A.D.2d at 376). Moreover, because the husband was listed on the birth certificate, "consistently held himself out as the child's father," and waited almost a year and a half before challenging paternity2, he was equitably estopped from doing so (id.). Indeed, it was not in the child's best interests to order a blood test which "would have the potential to brand the child illegitimate without settling the issue of paternity" (id.). Comparably, in light of the presumption of legitimacy, and where the husband's surname was on the child's birth certificate; the child was registered in school under that name; and the husband waited four years to contest paternity, his paternity petition was properly dismissed under equitable estoppel (David L v. Cindy Pearl L, 208 A.D.2d 502, 504 [2d Dept 1994])."(Shu Jun Zhu v Bin Pan, 55 Misc.3d 1209 [A] [Sup Ct, Queens County 2017]).
A. Summary Judgment & The Law of Adultery:
It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of facts are raised and cannot be resolved on conflicting affidavits (see Millerton Agway Coop. v Briarcliff Farms, 17 N.Y.2d 57, 61 [1966]; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). Initially, "the proponent... must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact." However, once a movant makes a sufficient showing, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Where the moving papers are insufficient, the court need not consider the sufficiency of the opposing papers (id.; see also Fabbricatore v Lindenhurst Union Free School Dist., 259 A.D.2d 659 [2d Dept 1999]).
" 'The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist'" (Bank of NY Mellon v Gordon, 171 A.D.3d 197, 201 [2d Dept 2019], quoting Kolivas v Kirchoff, 14 A.D.3d 493 [2d Dept 2005]). Accordingly," '[t]he court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned'" (Bank of NY Mellon v Gordon, 171 A.D.3d at 201, quoting Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968])." '[W]here credibility determinations are required, summary judgment must be denied'" (Bank of NY Mellon v Gordon, 171 A.D.3d at 201-202, quoting People ex rel. Cuomo v Greenberg, 95 A.D.3d 474, 483 [1st Dept 2012], affd 21 N.Y.3d 439 [2013]).
Adultery, as detailed in Domestic Relations Law § 170[4], is very specific, requiring proof of actual sexual intercourse or deviate sexual intercourse as defined in the Penal Law (Hunter v Hunter, 206 A.D.2d 700, 702 [2d Dept 1994]). To prove adultery as the ground for divorce, it is necessary to meet the same standards as those which existed when adultery was the only ground (see Hendry v Hendry, 101 A.D.2d 624 [3d Dept 1984]). In the context of a matrimonial action, the plaintiff is required to provide that adultery occurred by proof establishing by the preponderance of evidence which is clear and convincing (see Salomon v Salomon, 102 Misc.2d 427 [Sup Ct, Suffolk County 1979]).
DETERMINATION
A. Plaintiff's Motion: (Motion Sequence #1)
(1) Directing the parties and the minor child A.A.S. (Date of Birth xx/xx/2019), to undergo genetic testing/DNA.
Plaintiff's motion is denied. The Court determines that Plaintiff has failed to rebut the presumption of the legitimacy of the subject child through clear and convincing proof either excluding Plaintiff as the father of the child or tending to disprove the legitimacy of the child. To the contrary, the record before the Court provides mere speculation, conjecture, and conclusory allegations of Plaintiff as asserted support for the requested DNA paternity test.
The record before the Court reflects that in April 2022, almost three years following the subject child's birth, Plaintiff filed a Verified Complaint in this action, and prior to that date, did not file any other legal actions concerning the paternity of the child. This Complaint included a sworn statement that the subject child was a child of the marriage, sought an award of custody of the child, and included no requests for relief as to the paternity of the child. While Plaintiff's Complaint further included allegations of adultery by Defendant, no allegations were included that Defendant engaged in sexual relations that would have resulted in the conception of the subject child prior to the parties' marriage, nor were any such allegations made in any submissions made to this Court.
The record further reflects that the first time Plaintiff raised an issue as to the paternity of the child was made in the context of the Preliminary Conference wherein the issue of paternity was noted as an unresolved issue, but no applications were made seeking to compel any action, including, but not limited to, the Court ordering a DNA paternity test. However, in March of 2023, approximately four years after the child's birth, Plaintiff filed the Paternity Petition. In addition to this delayed filing, the Court is troubled by what appears to be Plaintiff's intentional omission of material information on this submission by failing to include reference to Plaintiff being Defendant's spouse (designated Respondent in that proceeding). Tellingly, Plaintiff does provide a sworn statement in this filing which confirms that he not only had access to Defendant during the gestation period of the child, but that he had sexual intercourse with her during that time.
Pursuant to a briefing schedule being directed by the Court, Plaintiff's submissions are devoid of any allegations that constitute a rebuttal of the presumption of legitimacy of the child as a biological product of the parties' marriage. The only allegations made pertain to Defendant's then-alleged employment of which Plaintiff acknowledged that he was aware.
For the aforementioned reasons, Plaintiff's motion is denied in its entirety.
(2) Granting such other and further relief that the Court may deem just and proper.
To the extent any relief requested has not been granted, it is hereby denied.
B. Defendant's Cross Motion: (Motion Sequence #2)
(1) Granting Defendant's motion for summary judgment, dismissing Plaintiff's adultery cause of action.
Defendant's motion is denied. The Court determines that Plaintiff has failed to meet the burden required for a summary judgement determination and refers all remaining issues to trial, which has been scheduled in this matter.
(2) Denying Plaintiff's motion to have a paternity test ordered by the Court.
Defendant's Cross Motion is denied as moot due to the denial of the relief sought in Plaintiff's Motion, being Motion Sequence #1.
(3) Granting such other relief as the court deems just and proper.
To the extent any relief requested has not been granted, it is hereby denied.
Accordingly, it is hereby
ORDERED that Plaintiff's motion is denied in its entirety, including, but not limited to, the request for an Order directing the parties and the minor child A.A.S. (DOB: xx/xx/2019), to undergo genetic testing/DNA; and it is further
ORDERED that Margaret A. Clarke, Esq., PO Box 505, North Salem, New York 10560, 914-232-0707, MACLAW8@MAC.COM, be appointed as the attorney for the child A.A.S. (DOB: xx/xx/2019), with the terms of payment to be set forth in a separate Order of Appointment; and it is further
ORDERED that Defendant's motion is denied to the extent that it seeks an Order granting Plaintiff's motion for summary judgment, dismissing the Plaintiff's adultery cause of action; and it is further
ORDERED that the parties and counsel, including the AFC, shall appear, in person, before the undersigned on Monday, August 14, 2023 at 10:00 a.m. for a compliance conference in Courtroom 1003.
ORDERED that the parties are directed to comply with the July 3, 2023 Pre-Trial Conference Order scheduling this matter for: (1) Settlement Conference on September 1, 2023 at 9:30 a.m.; (2) Pre-Trial Conference on September 25, 2023 at 10:00 a.m.; and (3) Trial commencing on November 8, 2023, at 9:00 a.m. and proceed day-to-day to November 9, 2023; and it is further
ORDERED that Plaintiff's counsel shall file a Notice of Entry with proof of service of this Decision and Order within ten (10) days of entry of this Decision and Order.
The foregoing constitutes the Decision and Order of the Court.