Matter of Davis
Annotate this CaseDecided on January 24, 2005
Surrogate's Court, Kings County
In the Matter of the Petition for a Compulsory Accounting and Related Relief in the Estate of James E. Davis, Deceased.
3134/03
For Movant
Derek McDowell, Esq.
1476 A Fulton Street
Brooklyn, NY 11216
(718) 778-9100
For the Administratrix
Harry Kresky, Esq.
250 West 57th Street, Suite 2017
New York, NY 10107
(212) 581-1516
Michael H. Feinberg, J.
In this proceeding to compel an accounting, the petitioner requests that genetic material held by the New York City Medical Examiner be produced for testing.
The decedent was a city councilman who was killed in the chambers of the City Council. His mother filed a petition for letters of administration stating that she was the sole distributee. Petitioner then brought a proceeding to compel an accounting, alleging that he was a non-marital child. The administratrix denies that the petitioner is a non-marital child of the decedent and challenges his standing to compel her to account.
Petitioner has made a motion for an order directing the Chief Medical Examiner to provide genetic material to the petitioner for testing. The material sought was collected by the Medical Examiner after his death. Petitioner alleges that the testing will establish that he is the child of the decedent.
In order to establish paternity of a non-marital child, it is necessary for petitioner to establish: (1) clear and convincing evidence that the decedent was his father and (2) clear and convincing evidence that the father "openly and notoriously acknowledged the child as his own. DNA evidence can be used to satisfy the first requirement, as long as the DNA test is sufficiently reliable (Matter of Santos, 196 Misc 2d 972 [Surr Ct Kings Co 2003]; Matter of Bonanno, 192 Misc 2d 86 [Surr Ct NY Co 2002]; Matter of Sandler, 160 Misc 2d 955 [Surr Ct NY Co 1994]; Matter of Johnson, NYLJ, October 15, 1997, at 37, col 2 [Surr Ct West Co]).
Nonetheless, DNA testing will not be ordered unless there is some evidence that the second prong of the test, i.e., open and notorious acknowledgment by the decedent can be met (see Matter of Seekins, NYLJ December 27, 2002 at 26, col 5 [Surr Ct West Co]). Petitioner was directed to produce evidence that he could meet this test. He has filed a number of affidavits. Only one, that of Gloria Frank, was relevant to the issue of whether the decedent openly and notoriously acknowledged the petitioner as his child.
Ms. Frank stated in her affidavit that she has known the decedent since 1992 [*2]and was a personal friend and a member of his ministry. She served in a number of positions in his political campaigns. The decedent first mentioned that he had a son in the year she met him in 1992. He told her that he did not marry petitioner's mother because he was too young and not ready to get married. He did not maintain contact with the mother because her family was upset with him and asked him not to come around. He heard a few years later, the mother married and, since he expected the father to adopt the child, he felt it best if he did not intrude on the family. Nonetheless, he told Ms. Frank that he expected to meet with the child when the child was older to explain why he had not been more involved with his life.
The administratrix opposes the motion for DNA testing on the ground that the affidavit fails to show the open and notorious acknowledgment of petitioner required to prove paternity. Petitioner is entitled to all evidence relevant and necessary to his claim (CPLR 3101). The requirement is to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]).
Since his mother has died, the genetic evidence of the decedent may be the only evidence available to provide clear and convincing proof of paternity. Therefore, it is both relevant and necessary. While the affidavit of Ms. Frank may not be sufficient by itself to establish open and notorious acknowledgment, it is sufficient to allow petitioner to proceed. The credibility and weight to be accorded the evidence will be determined at trial.
The Medical Examiner was cited and does not oppose the motion. There is no issue about the chain of custody or potential destruction of the DNA evidence (compare Matter of Seekins, NYLJ, December 27, 2002, supra; Matter of Vargas, NYLJ, December 10, 2002, at 22, col 2 [Surr Ct Queens Co]). Based on the above, the court grants the motion and directs the office of the Chief Medical Examiner of the City of New York to furnish the requested biological material for testing.
Settle order.
MICHAEL H. FEINBERG
S u r r o g a t e
Dated: January 24, 2005
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