Petitioner's application by order to show cause for an order pursuant to C.P.L.R. Article 78 permitting the amendment on Amandeep S.'s birth certificate of his father's full name from Malkit S. to Malkiat G. and amending his father's date of birth from January XX, 1970 to May XX, 1971, is denied without prejudice.

Petitioner asserts that his child was born on June XX, 1998 at 3:24 A.M. at Queens Hospital Center. He asserts that he was not present at the time of his son's birth and the hospital made a mistake in recording the name of Amandeep S.'s father on the birth certificate as "Malkit S." due to "a language barrier and communication error." (Verified Petition, para. 3). Petitioner further asserts that his wife, Balvir K., does not speak English and his repeated attempts to correct the error have been unsuccessful. He contends that his son, now thirteen (13) years of age, began to question why his father's name as listed on the birth certificate was not petitioner's name. Therefore, petitioner seeks to amend Amandeep S.'s birth certificate to reflect his name, Malkiat G., as the father.

Additionally, petitioner seeks to amend his date of birth as listed on Amandeep S.'s birth certificate from January XX, 1970 to May XX, 1971. He further claims that Amandeep S. has agreed not to amend his name from Amandeep S. to Amandeep G. due to the fact that his [*2]passport, school records and other related identification are in the name of Amandeep S. and it would be burdensome to change them all. Moreover, petitioner avers that he is married to his son's mother, Balvir K., in India.

In further support of his application, petitioner submits what he claims is a copy of his birth certificate, showing that he was born on May XX, 1971. (Exhibit B). He also submits a copy of an "Acknowledgment of Paternity" (Exhibit C) and a copy of a "Birth Certificate Correction Application Form." (Exhibit D).

Petitioner's counsel asserts that a birth certificate is "a crucial form of identification" and that for Amandeep S., the fact that the father's name designated in his original birth certificate is not accurate may lead to "embarrassment, humiliation, discrimination, accusations of fraud, denial of services, harassment or even violence." (Mackey Aff., para. 4). Additionally, petitioner's counsel claims that respondent has an affirmative duty to correct a birth certificate upon receiving a request accompanied by sufficient documentation. Therefore, it is imperative that this court permit the amendments to the birth certificate.

Although this court did not receive any papers in opposition to petitioner's application, the request to amend Amandeep S.'s birth certificate is denied.

First, petitioner's application is deficient in that there is no indication he attempted to make the changes to Amandeep S.'s birth certificate by submitting a request to respondent prior to bringing the instant application. There is no allegation by petitioner that he submitted the "Birth Certificate Correction Application Form" annexed to his moving papers to the Department of Health and that his request to amend the birth certificate was denied. Therefore, the instant application is premature.

Nevertheless, the motion is denied for failure to submit sufficient documentation to support his request for the amendments to Amandeep S.'s birth certificate. New York City Health Code §207.01, states that "The Commissioner or the Commissioner's designee may approve the amendment of a birth...certificate...Every application shall be accompanied by supporting documentary evidence..."

Petitioner contends that the errors in Amandeep S.'s birth certificate were due to a language barrier and communication error. On the record before this court, his attorney alleged that the child was born in the middle of the night and there was confusion which led to the error in petitioner's name and date of birth on the birth certificate. However, petitioner claims that he was not present for Amandeep S.'s birth. He does not indicate in his verified petition, who provided the information that was ultimately entered on Amandeep S.'s birth certificate. Moreover, there is no proof that the hospital attempted to obtain the information for the child's birth certificate immediately after the child's birth at 3:24 A.M. and that no one was available to translate the necessary information to the hospital. [*3]

Additionally, even though there may have been a language barrier or communication problem with the hospital, it is unusual that both petitioner's name and date of birth were erroneously entered on the birth certificate, particularly since the name and date of birth that appear on the birth certificate vastly differ from petitioner's actual name and date of birth.

Finally, petitioner's submission of an "Acknowledgment of Paternity"is insufficient to support his application because it is a witnessed statement signed by petitioner acknowledging that he is the father of Amandeep S. and a witnessed statement signed by Amandeep S.'s mother consenting to the acknowledgment of paternity. The statement is not proof of paternity but merely an acknowledgment of same. Therefore, without objective proof of paternity, this court cannot grant the instant application.

Accordingly, the application to amend the birth certificate of Amandeep S., is denied without prejudice.

This constitutes the decision and order of this court.

Dated: October 7, 2011

J.S.C.