Opinion
03-24-2016
Richard E. WINKLER, Plaintiff–Appellant, v. Joe SHERMAN, also known as Joeseph Daniel Sherman, also known as Joseph Sherman, Defendant–Respondent, New York State Legislature, Defendant.
Richard E. Winkler, appellant pro se. Melito & Adolfsen P.C., New York (Dawn Mikulastik Gagliardi of counsel), for respondent.
Richard E. Winkler, appellant pro se.
Melito & Adolfsen P.C., New York (Dawn Mikulastik Gagliardi of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 19, 2014, which granted defendant Sherman's motion to dismiss the complaint for failure to state a claim, and order, same court (Robert D. Kalish, J.), entered May 29, 2015, which, to the extent appealable, denied plaintiff's motion to renew, unanimously affirmed, without costs.
A statute is presumed constitutional and that presumption can only be overcome by proof persuasive beyond a reasonable doubt (Hotel Dorset Co. v. Trust for Cultural Resources of City of N.Y., 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284 [1978]; Local Govt. Assistance Corp. v. Sales Tax Asset Receivable Corp., 2 N.Y.3d 524, 535, 780 N.Y.S.2d 507, 813 N.E.2d 587 [2004] ). The court properly determined that plaintiff failed to demonstrate that Family Court Act § 517 was unconstitutional to the extent that it placed a limitation on the time when a child could seek a paternity test, given the state's legitimate interest in securing support for a child from those legally responsible. The limitations period is not arbitrary and capricious in that by age 21, a parent may not be legally responsible for support. Moreover, plaintiff, well over 21 years of age, was not seeking support from defendant.
Plaintiff also failed to provide binding legal authority for his claim that he had a constitutional right to know the identity of his biological father, given the strong presumption that his mother's husband, who was listed on his birth certificate, is his father.
The court properly denied plaintiff's motion to renew the December 19, 2014 decision in that plaintiff failed to present new facts not offered on the prior motion that would change the prior determination (Pullman v. Silverman, 125 A.D.3d 562, 563, 5 N.Y.S.3d 38 [1st Dept.2015]; see Drillings v. Beth Israel Med. Ctr., 200 A.D.2d 381, 606 N.Y.S.2d 191 [1st Dept.1994] ).
We have considered plaintiff's remaining arguments and find them unavailing.