Opinion
October 24, 1995
Appeal from the Family Court, New York County (Ruth Zuckerman, J.).
A prior effort by petitioner to have DNA tests performed on herself, respondent and the subject child was rejected by this Court in its remand of the case for the purpose of allowing respondent to introduce rebuttal expert testimony on the interpretation of HLA blood tests ( Tamara B. v. Pete F., 157 A.D.2d 636, amdg Tamara B. v. Pete F., 146 A.D.2d 487). The issue of whether there should be DNA testing was decided at that time, and, as a matter of law, the case should not be reconsidered now ( see, Foley v. Roche, 86 A.D.2d 887, lv denied 56 N.Y.2d 507). Nor is a new trial warranted by petitioner's claimed "newly-discovered evidence" (CPLR 5015 [a] [2]). The vague and conclusory statements of petitioner and the two newly proposed witnesses are insufficient to show why the latter were unavailable and when and how contact was reestablished ( cf., Cizler v. Cizler, 19 A.D.2d 819). Petitioner admits that her "newly discovered" tape recording of conversations was in her possession at the time of the fact-finding hearing. It is also not clear how this evidence, which could only serve to undermine the credibility of adverse witnesses, would probably produce a different result ( see, Teichner v. W J Holsteins, 161 A.D.2d 454, lv dismissed 77 N.Y.2d 873). Similarly, even if an HLA blood test of one of petitioner's paramours conclusively excluded him as the father, as petitioner contends, that would hardly be clear and convincing evidence of respondent's paternity, given that an HLA test indicated a relatively low probability of respondent's paternity, and the numerous men who had sexual relations with petitioner during the possible conception period. Finally, petitioner's claims of respondent's "fraud, misrepresentation and misconduct" are raised for the first time on appeal, and therefore not properly before us ( Ku v. Gu, 186 A.D.2d 88 ).
Concur — Rosenberger, J.P., Rubin, Ross, Nardelli and Mazzarelli, JJ.