Montepagani v. New York City Department of Health

Appellate Division of the Supreme Court of New York

Montepagani v. New York City Department of Health

85 A.D.3d 474, 924 N.Y.S.2d 784

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

DecidedJune 9, 2011

StatusPublished

Cited by3 cases

This text of 85 A.D.3d 474 (Montepagani v. New York City Department of Health) 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

Montepagani v. New York City Department of Health, 85 A.D.3d 474, 924 N.Y.S.2d 784 (N.Y. Ct. App. 2011).

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Opinion

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered January 7, 2011, which, upon granting petitioner’s motion to renew, adhered to its prior order (same court and Justice), entered August 30, 2010, which denied the petition and dismissed the proceeding, unanimously affirmed, without costs.

We find that the IAS court property denied the petition both in its original order and upon renewal. As a preliminary matter, because petitioner’s proofs failed to raise any issue of material [475]*475fact, the proceeding was properly determined without a hearing (see Matter of Battaglia v Schuler, 60 AD2d 759 [1977]). There was no quasi-judicial hearing before respondent agency. Thus, the IAS court was correct in refusing to refer the proceeding to this court pursuant to CPLR 7804 (g). Moreover, contrary to petitioner’s assertion, the IAS court appropriately required that petitioner rebut the presumption of legitimacy by clear and convincing evidence in order to have her ostensible father’s name removed from her birth certificate (see Murtagh v Murtagh, 217 AD2d 538 [1995]).

We have considered the remaining arguments and find them to be without merit. Concur — Gonzalez, P.J., Tom, Friedman, Catterson and Richter, JJ. [Prior Case History: 30 Misc 3d 1206(A), 2011 NY Slip Op 50002(U).]

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Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered January 7, 2011, which, upon granting petitioner’s motion to renew, adhered to its prior order (same court and Justice), entered August 30, 2010, which denied the petition and dismissed the proceeding, unanimously affirmed, without costs.

We find that the IAS court property denied the petition both in its original order and upon renewal. As a preliminary matter, because petitioner’s proofs failed to raise any issue of material [475]*475fact, the proceeding was properly determined without a hearing (see Matter of Battaglia v Schuler, 60 AD2d 759 [1977]). There was no quasi-judicial hearing before respondent agency. Thus, the IAS court was correct in refusing to refer the proceeding to this court pursuant to CPLR 7804 (g). Moreover, contrary to petitioner’s assertion, the IAS court appropriately required that petitioner rebut the presumption of legitimacy by clear and convincing evidence in order to have her ostensible father’s name removed from her birth certificate (see Murtagh v Murtagh, 217 AD2d 538 [1995]).

We have considered the remaining arguments and find them to be without merit. Concur — Gonzalez, P.J., Tom, Friedman, Catterson and Richter, JJ. [Prior Case History: 30 Misc 3d 1206(A), 2011 NY Slip Op 50002(U).]

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Bluebook (online)

85 A.D.3d 474, 924 N.Y.S.2d 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montepagani-v-new-york-city-department-of-health-nyappdiv-2011.

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