Opinion
CAF 02-01724
December 30, 2002.
Appeal from an order of Family Court, Wayne County (Nesbitt, J.), entered July 19 2002, which, inter alia, required respondent to submit to a second genetic marker test.
ROBERT A. DI NIERI, CLYDE, FOR RESPONDENT-APPELLANT.
MICHAEL M. FAUL, LYONS, FOR PETITIONER-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Respondent contends that Family Court erred in granting the request of Lynzie C. for an order requiring respondent, the child at issue and Lynzie, the child's mother, to submit to a second genetic marker test inasmuch as the first test excluded respondent as the father. Pursuant to Social Services Law § 111-k, "[w]hen the paternity of a child is contested, a social services official * * * may order the mother, the child, and the alleged father to submit to one or more genetic marker or DNA tests * * * to aid in the determination of whether * * * the alleged father is the father of the child. * * * If either party contests the results of [the] tests, an additional test may be ordered upon written request to the social services district and advance payment by the requesting party" (Social Services Law § 111-k [a], [c] [emphasis added]). Because the child's mother was not represented by counsel when she orally requested the second test, we excuse her failure to make a written request for the second test ( see § 111-k [2] [c]). As petitioner correctly notes, the genetic marker test is not intrusive and will be without cost to respondent if he is proven not to be the father ( see id.).