Petitioner Jesus M. Decamps, an infant, by his mother Esperanza Cedeno, commenced this CPLR article 78 proceeding to compel respondent the New York City Department of Health to amend his birth certificate by changing the full maiden name of the mother. The birth certificate identifies petitioner's mother as "Bernaldina Garcia" and sets forth her date of birth as "09/17/1973." Esperanza Cedeno, who was apparently born on April 3, 1973, claims that she gave birth to petitioner, but provided the hospital with false information concerning her identity. Esperanza Cedeno explains that, given her "illegal immigration status," she feared that identifying herself truthfully would have resulted in the hospital taking petitioner away from her. Respondents oppose this application, essentially arguing that the hospital committed no error in preparing the birth certificate and that petitioner has failed to establish that Esperanza Cedeno is [*2]his biological mother.

It is well-settled that mandamus is available "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law" (see New York Civil Liberties Union v State of New York, 4 NY3d 175, 184 [2005] [citations omitted]). Thus, mandamus does not lie to enforce the performance of a discretionary duty, involving " the exercise of reasoned judgment which could typically produce different results'" (id. [citations omitted]). Mandamus lies to compel performance of a ministerial act, which " envisions direct adherence to a governing rule or standard with a compulsory result'" (id. [citations omitted]).

Review of the governing regulation indicates that the granting of an application to amend a birth certificate requires some measure of discretion. The New York City Health Code provides that "[t]he Commissioner or other personnel of the Department designated by him may approve the amendment of [a] birth . . . certificate" (NY City Health Code [24 RCNY] § 207.01 [a] [emphasis added]). It further provides that "[n]o application 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 or filing of the certificate. . ." (NY City Health Code § 207.01 [c]). However, as respondent does not challenge that petitioner has brought the correct proceeding, the court will not dismiss the petition on the ground that a writ of mandamus is generally unavailable in this context.

That said, petitioner has not established entitlement to an amendment of his birth certificate for purposes of compelling respondent to make the requested change.^[FN1] In support of his application, petitioner submits copies of (1) his birth certificate, (2) an Order for a Genetic Marker Test made in the context of a paternity proceeding in which Esperanza Cedeno was the petitioner, (3) a genetic test report, concluding only as to the probability of paternity, not maternity and (4) Esperanza Cedeno's Dominican Republic passport. These documents alone are insufficient to establish "as true fact" that Esperanza Cedeno is petitioner's mother (see NY City Health Code § 207.01 [c]). Thus, the court will not now direct respondent to remove the name and other identifying information of Bernaldina Garcia from the petitioner's birth certificate to be replaced with that of Esperanza Cedeno. Accordingly, it is

ORDERED that the petition is denied and proceeding is dismissed.

The foregoing constitutes the court's decision and judgment.

DATED:KIBBIE F. PAYNE, J.S.C