Matter of Carl Henry P. v Tiwiana L.

Matter of Carl Henry P. v Tiwiana L. 2011 NY Slip Op 02681 Decided on March 29, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 29, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
PETER B. SKELOS
RUTH C. BALKIN
SHERI S. ROMAN, JJ.
2010-04709
(Docket Nos. P-1134-10, P-1590-10, P-1591-10, P-1592-10, P-1593-10)

[*1]In the Matter of Carl Henry P. (Anonymous), petitioner- respondent,

v

Tiwiana L. (Anonymous), appellant; Suffolk County Department of Social Services, respondent-respondent. (Proceeding No. 1) In the Matter of Tiwiana L. (Anonymous), appellant, Carl Henry P. (Anonymous), et al., respondents- respondents. (Proceeding No. 2) Del Atwell, East Hampton, N.Y., for appellant.



 
Christine Malafi, Central Islip, N.Y. (Jennifer L. Basile of
counsel), for respondent-respondent Suffolk County Department of Social
Servivces.
Lynn Poster-Zimmerman, P.C., Huntington, N.Y., attorney for
the children.

 
DECISION & ORDER

In related paternity proceedings pursuant to Family Court Act article 5, the mother appeals from an order of the Family Court, Suffolk County (Quinn, J.), dated April 14, 2010, which, without a hearing, in effect, granted the motion of the Suffolk County Department of Social Services pursuant to CPLR 3211(a)(7) to dismiss the petitions.

ORDERED that the order is affirmed, without costs or disbursements.

In these related paternity proceedings, the Family Court granted the motion of the Suffolk County Department of Social Services (hereinafter the DSS) for leave to intervene on the ground that the children were receiving public assistance. The Family Court then granted the motion of the DSS pursuant to CPLR 3211(a)(7) to dismiss the petitions.

"A child born during marriage is presumed to be the biological product of the marriage and this presumption has been described as one of the strongest and most persuasive known to the law'" (Matter of Barbara S. v Michael I., 24 AD3d 451, 452, quoting David L. v Cindy Pearl L., 208 AD2d 502, 503 [internal quotation marks omitted]). Moreover, "the doctrine of equitable estoppel is applicable in paternity proceedings and is invoked to preserve the status of legitimacy for the child" (Matter of Alberto T. v Tammy D., 274 AD2d 587, 587).

Here, the subject children, all of whom were conceived and born during the marriage, [*2]are presumed to be the legitimate children of the mother and her husband (see Domestic Relations Law § 240[1]). Moreover, under the particular circumstances of this case, the Family Court properly applied the doctrine of equitable estoppel and concluded, without a hearing, in effect, that it was in the best interest of the children to preserve their status as legitimate (see Matter of Alberto T. v Tammy D., 274 AD2d at 587). Accordingly, the Family Court properly, without a hearing, in effect, granted the motion of the DSS pursuant to CPLR 3211(a)(7) to dismiss the petitions.
MASTRO, J.P., SKELOS, BALKIN and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court