Barbara Ann W. v. David Wy.

183 Misc. 2d 228, 701 N.Y.S.2d 845, 1999 N.Y. Misc. LEXIS 582
CourtNew York City Family Court
DecidedDecember 3, 1999
StatusPublished
Cited by1 cases

This text of 183 Misc. 2d 228 (Barbara Ann W. v. David Wy.) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barbara Ann W. v. David Wy., 183 Misc. 2d 228, 701 N.Y.S.2d 845, 1999 N.Y. Misc. LEXIS 582 (N.Y. Super. Ct. 1999).

Opinion

OPINION OF THE COURT

Kerry R. Trainor, J.

On February 2, 1999, David Wy. filed a verified petition seek[229]*229ing an order of this court vacating an order of filiation entered upon his admission. On May 15, 1991, he had appeared before Hearing Examiner Buse and admitted that he was the biological father of George W.-Wy., who was born out of wedlock to Barbara Ann W. on January 25, 1988. In support of his present application, Mr. Wy. asserts that “he has obtained a DNA test to exclude him as the father.”

After answering papers were filed by the child’s assigned Law Guardian and the County Attorney on behalf of Barbara W. and the Suffolk County Department of Social Services (hereinafter referred to as DSS), the issue of the admissibility and weight to be given to this privately arranged DNA paternity test was placed squarely before the court.

Background

The DNA test which is the driving force behind this litigation was performed under unusual circumstances. In early January of 1999, Mr. Wy. telephoned a nationally syndicated television talk show called “The Sally Jesse Raphael Show”; he offered to provide a DNA sample and appear as a guest to argue that he was not George W.-Wy.’s father. A representative of the show then telephoned Ms. W. She was equally convinced that DNA results would show that David Wy. was the father; she agreed to provide samples of her own and George’s DNA. Ms. W.’s decision was a necessary foundation for the upcoming show and eventually for this litigation.

Samples were collected and comparison testing was promptly completed by Micro-Diagnostics, Inc. (Micro-Diagnostics) of Nashville, Tennessee, in time for the videotaping of the show on January 13, 1999. Mr. Wy. appeared at the studio; Ms. W. testified that she did not appear because her son said he would be embarrassed if she did. Therefore, there was no guest to argue against Mr. Wy. He acknowledged that he had avoided paying over $28,000 in child support that was due to DSS in compensation for that agency’s support of Ms. W. and George. He told the audience that he supported his wife and legitimate children, and would support George if he were the father. In a mocking manner, he described George as having an appearance that was totally different from himself, the mother, or any member of either of their families. He confidently stated he was not the father. His position was supported by Mr. Alan Gelb, the show’s “paternity expert.” When the show’s host asked Mr. Gelb what Mr. Wy. should say to the Judge, Mr. [230]*230Gelb responded, “Tell the Judge you are not the father.” The crowd cheered.

A hearing has now been conducted. In the more challenging atmosphere of the courtroom, facts were presented that might have tempered the audience’s enthusiastic support for Mr. Wy.’s apparent victory. A photograph of George W.-Wy. has been placed in evidence. It clearly shows that David Wy.’s description of him on television has no relationship to his true appearance. George is an 11-year-old boy whose appearance is consistent with both his mother and Mr. Wy. There is no laughable dissimilarity. Mr. Wy. also acknowledged in court that he did have relations with Barbara Ann W. on at least five occasions during a time period when conception could have occurred. If he is not the father the only reason is chance. There is nothing about the boy’s appearance or the true history of the relationship with Ms. W. that casts any doubt on the accuracy of Mr. Wy.’s 1991 sworn admission that he is George’s father. In essence, after hearing this testimony, all that remains to support his application to undo paternity is the Micro-Diagnostics “certified” test report which states, “David Wy. cannot be the father of the child, George D. W.-Wy.”

When Mr. Gelb stated his opinion on television, he officiously referred to a document that he held in his hand. In this courtroom proceeding, efforts were made to support his opinion with a document entitled, “Affidavit * * * Certification Pursuant to CPLR § 4518 (d) and (e).” It was sworn to by Dr. Deborah Cutter, Ph D, the Director of Micro-Diagnostics, on January 13, 1999, which was the date of the videotaping of the show. It states, among other things, that her laboratory is certified by the State of New York to do paternity testing. It goes on to certify the accuracy of the test result that eliminates David Wy. as George W.-Wy.’s father.

Mr. Wy.’s attorney has offered this certification and the attached result into evidence pursuant to the “automatic” admissibility rules stated in CPLR 4518 (d) and (e) and Family Court Act § 532. The County Attorney opposes its consideration by the court. All parties agree that this laboratory is one of a limited number that are approved for this type of testing by the New York State Department of Health (hereinafter referred to as DOH). Additionally, they agree that there is no statutory bar to the consideration of the test results on account of res judicata, the presumption of legitimacy or equitable estoppel. These barriers, which are set forth in Family Court Act § 532, protect children from the emotional havoc of inappropriate [231]*231court-ordered paternity tests in certain circumstances. Since Mr. Wy. and Ms. W. were never married, there is no presumption of legitimacy. Even though they live in the same neighborhood and George bears David’s last name, all parties agree that George W.-Wy. has never developed a relationship with David Wy.; therefore, there is no estoppel issue. In light of Ms. W. reopening the paternity issue by providing DNA samples, no one has raised res judicata.

The County Attorney, however, correctly pointed out that the laboratory director’s “certification” was invalid for “automatic” admissibility because the test was not court ordered. The County further contended that it was prepared solely for a television show and was nothing more than a stage prop.

The County argued that these defects should end this litigation. The respondent’s attorney responded that the lack of a court order was merely a “technical defect” and asked to be permitted to prove the correctness of the test result stated in the certification. This request was granted. A hearing has been conducted because of the serious effect this document has had in revitalizing the paternity dispute and a sense that it was worthy of some judicial consideration because it was prepared by a DOH-authorized laboratory.

At the outset, Mr. Wy.’s counsel was instructed that the result stated in this particular certification would not be automatically accepted into evidence. He would have to call witnesses to explain the procedures that were followed in order to demonstrate by clear and convincing evidence what, if any, evidentiary value should be given to this particular DNA test. Because of the dilemma of having to deal with a questionable document that contains potentially significant results, this court has adopted, for purposes of this case, a standard suggested by Chief Judge Kaye in her concurring opinion in People v Wesley (83 NY2d 417, 445-446 [1994]):

‘While the general acceptability of these [DNA] techniques is no longer an open question, and trial courts may take judicial notice of their reliability, the adequacy of the methods used to acquire and analyze samples must be resolved case by case * * *

“ ‘[florensic DNA analysis should be governed by the highest standards of scientific rigor in analysis and interpretation.

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Bluebook (online)
183 Misc. 2d 228, 701 N.Y.S.2d 845, 1999 N.Y. Misc. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barbara-ann-w-v-david-wy-nycfamct-1999.