Matter of Montepagani v New York City Dept. of Health Div. of Vital Records

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[*1] Matter of Montepagani v New York City Dept. of Health Div. of Vital Records 2011 NY Slip Op 50002(U) [30 Misc 3d 1206(A)] Decided on January 3, 2011 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 3, 2011
Supreme Court, New York County

In the Matter of the Application of Nina (Formerly Sebastiana) Viola Montepagani, Petitioner,


The New York City Department of Health, Division of Vital Records, Respondent.


For Petitioner

Lawrence B. Goldberg, Esq.

220 Fifth Avenue, 13th Fl

New York, NY 10001

For Respondent:

Michael A. Cardozo

Corporation Counsel of the City of New York

By: Amy Weinblatt, Esq.

100 Church St

New York, NY 10007

Michael D. Stallman, J.

Petitioner moves to renew and reargue the Court's decision, order and judgment dated April 23, 2010, which dismissed the petition for an order directing respondent to delete the name of Joseph Viola from petitioner's birth certificate as her father, and to leave it blank.


The background allegations of the petition were set forth in the Court's prior decision, order and [*2]judgment dated April 23, 2010. See Goldberg Affirm., Ex A. Petitioner was born on June 24, 1952. According to the petition, petitioner's birth certificate lists Anna Viola as petitioner's mother and Joseph Viola as her father. Anna Viola died in 1957 when petitioner was 5 years old; Joseph Viola died in 1987.

Petitioner claims that Joseph Viola, who was married to her mother at the time of her birth, was not her biological father. Instead, she claims that Sebastiano Raeli, an Italian national, is her biological father. In Italy, petitioner is attempting to assert rights in Raeli's estate. According to petitioner, Raeli repeatedly declared himself to be petitioner's father, promised to leave a substantial estate to petitioner (allegedly his only child), but thereafter reneged on this alleged promise. Petitioner is attempting to challenge the estate distribution in a court in Italy. At the time of the petition Raeli was purportedly living, but according to petitioner's counsel, Raeli "died earlier this year [2010]." Goldberg Reply Affirm. ¶ 8; Montepagani Aff. ¶ 21. However, it appears that the Italian court will not consider petitioner's application in Italy for a determination of paternity so long as Viola's name appears as the name of petitioner's father on petitioner's birth certificate.

Petitioner had submitted unauthenticated documents to establish that Raeli acknowledged petitioner as his daughter. Petitioner also contended that Joseph Viola had no access to petitioner's mother during the period when petitioner was conceived. By decision, order, and judgment dated April 23, 2010, this Court denied the petition because petitioner had not overcome the legal presumption of Joseph Viola's paternity by clear and convincing evidence. The Court found no clear and convincing evidence that Raeli ever held out petitioner as his daughter to the public, because, among other things, the documents purportedly signed by Raeli were not authenticated. The Court also found that the argument of lack of access did not overcome the presumption of paternity because petitioner did not rule out the possibility that she was conceived when Joseph Viola reunited with petitioner's mother when she entered the United States on October 23, 1951, and that petitioner could have been born prematurely.


As to reargument, petitioner argues that the Court erred in "evaluat[ing] the Petition as if this was a motion for summary judgment." Goldberg Affirm. ¶ 6. Petitioner contends that she was not obligated "to present each and every element of her proof that might be adduced at trial . . ." Id. ¶ 11. Petitioner further argues that the Court "misunderstood a statement" in the affirmation of petitioner's counsel. Id. ¶ 7. Petitioner contends that the petition sought only an order directing respondent to delete Joseph Viola's name from petitioner's birth certificate, and nothing more. Thus, petitioner reasons that "there was no necessity for the Court . . .to rule that the Petition has to be dismissed since Raeli is not a party before the Court." Id. ¶ 20. Petitioner also argues that the petition was in the nature of a writ of mandamus, and that the Court "should refer the case to the Appellate Division for an evidentiary hearing" pursuant to CPLR 7804 (g) should the Court still have evidentiary questions about the petition. Id. ¶ 13. Lastly, petitioner asserts that respondent did not dispute the allegations of the petition.

Petitioner fails to demonstrate that the Court overlooked or misapprehended any applicable law or facts in its prior decision, order and judgment. Due to the nature of a special [*3]proceeding, "the court in which the proceeding is initiated will apply summary judgment analysis . . . ." Trustco Bank NA v Strong, 261 AD2d 25, 27 (3d Dept 1999).

Any ambiguity in the nature of the petition was inherent in its wording and that of the supporting affirmation of petitioner's counsel. Although the petition did seek to remove the name of Joseph Viola from petitioner's birth certificate, Paragraph 17 of the prior affirmation of petitioner's counsel (which the Court inadvertently cited as paragraph 14) also stated, "This is precisely what this Petitioner seeks here: a declaratory judgment determining that Joseph Viola was not her natural father and that Sebastiano Reali [sic] was." Goldberg Affirm., Ex B, at 6 (emphasis added). Based on this clear statement in the affirmation, the Court necessarily had to address in its prior decision, order, and judgment the issue of whether that relief could be granted given that Raeli was not joined as a necessary party to the petition.

"Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right' to the relief requested." Matter of Council of City of New York v Bloomberg, 6 NY3d 380, 388 (2006). In addition, "there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief." Matter of Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educ. Servs., 77 NY2d 753, 757 (1991). Here, nothing in the petition indicated that the petition was in the nature of mandamus. Neither did the petition, its supporting papers or these motion papers indicate that a demand was made upon respondent to remove the name Joseph Viola from petitioner's birth certificate prior to the petition. In addition, petitioner cites no law which requires respondent to remove the name Joseph Viola from her birth certificate at her request. Article 207.01 (c) of the Health Code of the City of New York states, in pertinent part: "No application [to amend a birth certificate] shall be approved unless the Commissioner or his designee is satisfied that the evidence submitted shows the true facts and that an error was made at the time of preparing and filing of the certificate, or that the name of a person named in a birth certificate has been changed pursuant to court order."

New York City Health Code (24 RCNY) § 207.01.

Petitioner has not demonstrated that CPLR 7804 (g) applies to the petition. "A substantial evidence' question is presented only where a quasi-judicial evidentiary hearing has been held." Matter of Halperin v City of New Rochelle, 24 AD3d 768 (2d Dept 2005). Here, petitioner has not demonstrated that respondent denied a request from petitioner to amend her birth certificate following an evidentiary hearing on the record, or that the administrative agency was required by law to have held such a hearing.

Finally, whether the City disputed the petition's allegations is not determinative of whether petitioner met her burden on the petition. As discussed above, some of the documents which petitioner submitted were to support the claim that Raeli acknowledged that he was petitioner's father. However, petitioner did not join the one person who might have had an interest in refuting petitioner's claim about the documents presented when Raeli was alive.

As to renewal, respondent points out that the evidence which petitioner wishes to be considered on this motion does not constitute "newly discovered evidence." "While this evidence was not technically newly discovered, this requirement should be relaxed in the [*4]interests of justice." Postel v New York Univ. Hosp., 262 AD2d 40, 42 (1st Dept 1999). Therefore, in the interests of justice, this Court will grant petitioner leave to renew her prior petition upon the additional exhibits submitted on this motion.

As discussed in the prior decision, order and judgment, the petition seeks to delete the name of Joseph Viola as the father from petitioner's birth certificate. The relief sought implicates the presumption of legitimacy, because petitioner was born during the marriage of her mother to Joseph Viola. "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.'" Murtagh v Murtagh, 217 AD2d 538, 539 (2d Dept 1995)(citations omitted). "Although this presumption operates most commonly in cases in which the issue involved is not the validity of the parents' marriage, but, rather, the paternity of the child, it does come into play in any case in which legitimacy is in issue." Matter of Fay, 44 NY2d 137, 141-142 (1978)(citations omitted).

Although petitioner states that the petition is not a paternity proceeding, the legal presumption of legitimacy comes into play in this petition. Currently, petitioner's birth certificate indicates that Joseph Viola is her father. Petitioner is claiming that she is an illegitimate child, i.e., a child of unmarried parents—her mother and Sebastiano Raeli, whom petitioner claims acknowledged her as his own daughter. As this Court previously stated, by removing Viola's name from the birth certificate, "[s]uch a change would, in effect, mean that petitioner's biological father is unknown." Goldberg Affirm., Ex A [Decision, Order, and Judgment], at 3.

This presumption of legitimacy may be rebutted by clear and convincing proof excluding the husband as the father or otherwise tending to disprove legitimacy.'" Murtagh v Murtagh, 217 AD2d 538, 539 (2d Dept 1995)(citation omitted). Under the clear and convincing standard, petitioner must submit evidence that "makes it highly probable that what [she] claims is what actually happened." PJI 1:64.

Petitioner argues that the lower standard of "preponderance of the evidence" should be applied: "There are many reasons why the father's name need not be on a child's birth certificate and each of these reasons is compelling in and of itself. The first instance is where the father is unknown to the mother. Children are conceived through artificial insemination . . . .Women give birth to children in circumstances where they do not want to identify a father on the birth certificate. These women are not compelled to name a name.' . . . Is it clear and convincing evidence' or is it something less. Given the fact that the social sensibility in having a child born of parents identified in his/her birth certificate is now no longer so compelling, what should the burden be?"

Goldberg Affirm. ¶¶ 30, 32. Counsel advocates that the Court take judicial notice that "the stigma associated with a birth out-of-wedlock has largely been erased in the past fifty years or more." Id. ¶ 24.

The Court is unpersuaded that a lower evidentiary standard should apply. The fact that a father's name does not appear on a birth certificate in some cases that do not apply here is not a basis for lowering the evidentiary standard that applies to removing the name of an individual [*5]listed on a birth certificate as a parent. The Court is unpersuaded that the presumption of legitimacy should be weakened because it is purportedly more socially acceptable for children to be born out-of-wedlock.

Here, petitioner has not met her burden of demonstrating, by clear and convincing evidence, that Joseph Viola, her mother's husband, was not her father. Petitioner's self-serving, hearsay statements that Raeli told everyone that petitioner was his daughter are not competent evidence. Petitioner claims that she was named after Sebastiano Raeli, in that her middle name was Sebastiana. However, petitioner does not state the source of that information, for her mother died when petitioner was age 5, and petitioner only "sincerely doubt[s] that even Jospeh Viola did not know (at the time of my birth and naming) that I was named for Sebastiano Raeli." Montepagani Aff. ¶ 17. Petitioner's documents do not make it highly probable that Raeli, not Viola, was her biological father.

Petitioner also claims that Joseph Viola had no access to petitioner's mother during the period when she was conceived. It is undisputed that petitioner was born on June 24, 1952. Petitioner maintains that Joseph Viola entered the United States on October 22, 1950, and that her mother entered the United States on October 23, 1951 one year later, about eight months before petitioner was born. In the Court's prior decision, order and judgment, the Court indicated that the passport of Joseph Viola was not authenticated, and that petitioner did not submit all of the pages of the passport, which was done on this motion.

The Court reasoned that petitioner did not meet the clear and convincing standard of proof because petitioner did not rule out the possibility that she could have been born prematurely. On this motion, petitioner refers to a reference sheet on the March of Dimes website, which purportedly states that less than 12% of women from the ages of 20 to 29 have a premature birth, and submits a copy of article in the Singapore Medical Journal on human pregnancy. Montepagani Aff.., Ex H. Petitioner also submits photographs, purportedly of petitioner as a baby at her baptism four weeks after her birth (id., Ex I), and argues that she could not have been born prematurely because she was not a small baby in the photographs.

The article upon which petitioner relies is not relevant to petitioner's birth to an Italian mother in 1952. The conclusion of the article was that "Mean gestational age at the onset of labour for women native to the area of study was 272 days." Montepagani Aff., Ex H at 1. The area of study comprised of women who "belonged to the local ethnic group of South Asia and was from the Udupi district of Karnataka in South India." Id. at 2.

Petitioner argues that "there is a legal presumption that a birth is full term at 40 weeks," citing Taiwana Y v Benjamin Z, 204 AD2d 790 (3d Dept 1994). However, that case does not stand for such a legal presumption. In Taiwana Y, the petitioner sought to adjudicate the respondent as the father of her child at a filiation hearing. Taiwana Y. testified that she had engaged in sexual relations on October 25, 1988 with the respondent, and that she gave birth to a child on August 10, 1989, and introduced the results of a human leukocyte antigen (HLA) test, which reported the probability of the respondent's paternity to be 99.41%. Notations in hospital records indicated that the gestation period of Taiwana Y.'s child was 37.6 weeks. The Family Court dismissed the filiation proceeding. The Family Court reasoned that, given the date on which Taiwana Y. claimed that she had sexual relations with Benjamin Z., the child should have been born in July, assuming a 40-week gestation period. On appeal, the Appellate Division [*6]reversed, finding that Taiwan Y.'s testimony, Benjamin Z.'s silence at the filiation hearing, two sonograms, and the HLA test results met the clear and convincing standard. Id.

Thus, on this motion, petitioner has not demonstrated that it was highly probable either that Raeli was petitioner's biological father, or that Joseph Viola was not petitioner's biological father. Accordingly, the presumption of legitimacy has not been rebutted.


Accordingly, it is hereby

ORDERED that petitioner's motion to renew and reargue is granted to the extent that renewal is granted, and upon renewal, the Court adheres to its prior order and judgment.

Dated: January 3, 2011

New York, New York