PRESENT: HONORABLE MARK H. DADD

Family Court Judge

________________________________________

In the Matter of a Proceeding under

Article 5 of the Family Court Act


C.G., Petitioner

Docket No. P-12-00

v.

File No. 5619

ROBERT M., as Administrator

of the Estate of B.M., Respondent

________________________________________

The above-named petitioner having filed a petition, dated March 2, 2000, alleging that B.M. was the father of J.G. a female child born out of wedlock to C.G. on December 29, 1985; and

Petitioner, C.G., having appeared in support of the petition with her attorney, John Zonitch, Esq., and Robert M., Administrator of the Estate of B.M., having appeared with his attorney, Michael A. DelPlato, Esq., in opposition to the petition; and

The matter having duly come on for a hearing before this Court;

NOW, after examination into the facts and circumstances of the case and after hearing the proofs and testimony offered in relation thereto, the following decision is rendered.

C.G. testified to having sexual intercourse with B.M. on several occasions between April 2, 1985 and about April 15, 1985. The couple did not always use a birth control device during intercourse. Petitioner gave birth toJ.G.. on December 29, 1985, within the normal 266 day period of gestation (see Matter of Sullivan County Department of Social Services [Sherri P.] v. O. [Praytush], 223 A.D.2d 972 [1996]). Petitioner further testified that she has never married and that she had no other sexual partner prior to the birth of her daughter. The record also includes the results of

human leucocyte antigen tests which show a 99.58% probability that B.M. was the father ofJ.G...

The Court finds that this record presents clear and convincing evidence which is entirely satisfactory and creates a genuine belief that B.M. was the father o f J.G. Petitioner offered further proof of a telephone conversation she had with B.M. wherein she refused to agree to an abortion. The Court reserved decision on the estate's objection to the admissibility of this testimony under CPLR §4519. The estate has failed to establish that C.G. is a witness with a legal interest in this proceeding which would render her incompetent to testify under the dead man's statute (see People ex rel Blake v. Charger, 76 Misc.2d 577, 578 [1974]; Matter of Sondra S. v. Jay O., 126 Misc.2d 322, 327[1984]). Thus, the estate's objection is without merit and the disputed testimony is admissible.

NOW, THEREFORE, it is

ADJUDGED and DECLARED that B.M. is the father of J.G. born on December 29, 1985.

DATED: August 14, 2000


Family Court Judge

Copies to:

C.G.,

Robert M., 9121 Shepard Road, Batavia, NY 14020

John Zonitch, Esq., Oak Orchard Legal Services, Inc., 5073 Clinton Street

Road, Batavia, NY 14020

Michael A. DelPlato, Esq., 73 Main Street, Batavia, NY 14020



Pursuant to Section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in Court, thirty-five days from the mailing of the order to the appellant by the clerk of the Court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.

Entered and Mailed


Decision and Order

File No. 5619