In re the Estate Ludwig

Appellate Division of the Supreme Court of New York

In re the Estate Ludwig

239 A.D.2d 122, 657 N.Y.S.2d 35, 1997 N.Y. App. Div. LEXIS 4459

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 1, 1997

StatusPublished

Cited by3 cases

This text of 239 A.D.2d 122 (In re the Estate Ludwig) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate Ludwig, 239 A.D.2d 122, 657 N.Y.S.2d 35, 1997 N.Y. App. Div. LEXIS 4459 (N.Y. Ct. App. 1997).

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Opinion

Decree Admitting Will to Probate, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about February 14, 1996, which, to the extent appealed from, adjudged that appellant lacks standing to file objections to probate, unanimously affirmed, without costs.

Although there is a strong presumption that a child born to a married woman was fathered by her husband, it is rebut-[123]*123table by clear and convincing evidence (Ghaznavi v Gordon, 163 AD2d 194), and "[t]he result of a properly administered blood test which excludes the husband’s paternity is sufficient to rebut the presumption” (Ghaznavi v Gordon, supra, at 195; see also, CPLR 4518 [d]). In this case, appellant’s mother made repeated written declarations that the decedent was not her daughter’s father, a fact that is supported by the terms of the couple’s divorce decree, the absence of child support and the mother’s admissions to her family. Furthermore, the scientific tests clearly established his non-paternity and there was ample evidence supporting the reliability of the tests. Therefore, the Surrogate was amply justified in finding that the presumption had been rebutted by clear and convincing evidence. We have considered appellant’s arguments and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Wallach, Rubin and Tom, JJ.

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Decree Admitting Will to Probate, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about February 14, 1996, which, to the extent appealed from, adjudged that appellant lacks standing to file objections to probate, unanimously affirmed, without costs.

Although there is a strong presumption that a child born to a married woman was fathered by her husband, it is rebut-[123]*123table by clear and convincing evidence (Ghaznavi v Gordon, 163 AD2d 194), and "[t]he result of a properly administered blood test which excludes the husband’s paternity is sufficient to rebut the presumption” (Ghaznavi v Gordon, supra, at 195; see also, CPLR 4518 [d]). In this case, appellant’s mother made repeated written declarations that the decedent was not her daughter’s father, a fact that is supported by the terms of the couple’s divorce decree, the absence of child support and the mother’s admissions to her family. Furthermore, the scientific tests clearly established his non-paternity and there was ample evidence supporting the reliability of the tests. Therefore, the Surrogate was amply justified in finding that the presumption had been rebutted by clear and convincing evidence. We have considered appellant’s arguments and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Wallach, Rubin and Tom, JJ.

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Bluebook (online)

239 A.D.2d 122, 657 N.Y.S.2d 35, 1997 N.Y. App. Div. LEXIS 4459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-ludwig-nyappdiv-1997.

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