Wayne County Department of Social Services v. Geoffery P.

300 A.D.2d 1148, 750 N.Y.S.2d 915, 2002 N.Y. App. Div. LEXIS 13188

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2002
• Status: Published

Opinion

—Appeal from an order of Family Court, Wayne County (Nesbitt, J.), entered July 19 2002, which, inter alia, required respondent to submit to a second genetic marker test.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent contends that Family Court erred in granting the request of Lynzie C. for an order requiring respondent, the child at issue and Lynzie, the child’s mother, to submit to a second genetic marker test inasmuch as the first test excluded respondent as the father. Pursuant to Social Services Law § 111-k, “[w]hen the paternity of a child is contested, a social services official * * * may order the mother, the child, and the alleged father to submit to one or more genetic marker or DNA tests * * * to aid in the determination of whether * * * the alleged father is the father of the child. * * * If either party contests the results of [the] tests, an additional test may be ordered upon written request to the social services district and advance payment by the requesting party” (Social Services Law § 111-k [2] [a], [c] [emphasis added]). Because the child’s mother was not represented by counsel when she orally requested the second test, we excuse her failure to make a written request for the second test {see § 111-k [2] [c]). As petitioner correctly notes, the genetic marker test is not intrusive and will be without cost to respondent if he is proven not to be the father (see id.). Present — Pigott, Jr., P.J., Pine, Wisner, Kehoe and Burns, JJ.