Hyperlawhypertext legal database Kerry S. v. Avelda B. 122 A.D.3d 429

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Kerry S. v. Avelda B.

122 A.D.3d 429 Court N.Y. App. Div. Decision date 2014-11-06 English

Judges Concur — Sweeny, J.E, Andrias, Saxe, Richter and Feinman, JJ.

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p. 429
In the Matter of Kerry S., Respondent, v Avelda B., Appellant.
[995 NYS2d 574]

Order of filiation, Family Court, New York County (Monica Shulman, Referee), entered on or about March 6, 2013, declaring petitioner to be the biological father of the subject child, unanimously affirmed, without costs.

Respondent mother initially consented to having a DNA test performed to determine whether petitioner was the child’s biological father, and the test found there was a 99.99% prob

p. 430
ability that petitioner is the biological father of the child. She then raised an equitable estoppel defense based on the presence in the child’s life of another man who acted as a “father figure” for the child. The attorney for the child did not assert equitable estoppel on the child’s behalf, because the child would not be harmed, whatever the test determined. The Referee properly found that it was in the child’s best interests to deny respondent’s motion, without a hearing, because respondent presented no evidence that the child would suffer irreparable loss of status, destruction of his family image, or other harm to his physical or emotional well-being if the proceeding were permitted to go forward (see Matter of Todd S. v Lauri B., 110 AD3d 526 [1st Dept 2013]; Matter of David G. v Maribel G, 93 AD3d 526 [1st Dept 2012]; Matter of Derrick H. v Martha J., 82 AD3d 1236 , 1238-1239 [2d Dept 2011]).

Contrary to respondent’s contention, under Family Court Act § 532, DNA test results which indicate at least a 95% probability of paternity were not only admissible, but create a rebut-table presumption of paternity (see Matter of Commissioner of Social Servs. of City of N.Y. v Hector S., 216 AD2d 81 , 84 [1st Dept 1995]; Matter of Beaudoin v Robert A., 199 AD2d 842 , 844 [3d Dept 1993]). Accordingly, the certified DNA test results were properly admitted into evidence and relied upon by the Referee (CPLR 4518 [c]; Matter of Angela L. v Edward B., 237 AD2d 359 , 360 [2d Dept 1997]).

Concur — Sweeny, J.E, Andrias, Saxe, Richter and Feinman, JJ.

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