Morizzo v. Arthur N.

69 A.D.2d 864, 415 N.Y.S.2d 442, 1979 N.Y. App. Div. LEXIS 11572

Opinion

In a filiation proceeding, the appeals are from (1) an order of filiation of the Family Court, Suffolk County, dated August 30, 1976, (2) an order of the same court, dated January 13, 1977, which denied appellant’s motion to vacate the order dated August 30, 1976, and (3) a filiation order of support of the same court, entered January 24, 1978. Appeals from the orders dated August 30, 1976 and January 13, 1977 dismissed, without costs or disbursements. Those orders come up for review on the appeal from the order entered January 24, 1978. Order entered January 24, 1978 reversed, on the law, without costs or disbursements, order of filiation vacated and proceeding remitted to the Family Court for a new hearing as to filiation in accordance herewith. Appellant, the putative father, appeared at the Family Court hearing without counsel. Under these circumstances, the trial court erred in asking him questions without first advising him of his statutory right to refuse to testify (see Family Ct Act, § 531; Matter of Shirley D. v Ricardo B., 54 AD2d 564; Matter of Valerie H. v Koene D. B., 38 AD2d 728). The mere admonishment as to his right to counsel was insufficient for these purposes. Accordingly, there must be a reversal and a new filiation hearing held, especially in view of the fact that there is no evidence of paternity in this case apart from appellant’s admission (see Matter of Shirley D. v Ricardo B., supra). Rabin, J. P., Gulotta, Shapiro and Mangano, JJ., concur.