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Montepagani v New York City Dept. of Health, Div. of Vital Records
2015 NY Slip Op 50874(U) [47 Misc 3d 1228(A)]
Decided on June 10, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2015
Supreme Court, New York County


Nina (Sebastiana) Viola Montepagani, Petitioner,

against

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




104767/09



For plaintiff:



Amed Marzano & Sediva PLLC



By: Alexander Sediva, Esq.



65 Broadway, 7th Fl



New York, New York 10006



212-655-9561



For defendant:



Zachary Carter, Esq.,



Corporation Counsel for the City of New York



By: Amy J. Weinblatt, Esq.



Assistant Corporation Counsel 100 Church Street



New York, New York 10007



212-788-0764


Michael D. Stallman, J.

Petitioner's motion for renewal, based on newly discovered evidence, of this Court's Decision, Order and Judgment dated April 23, 2010 (30 Misc 3d 1206[A] [Sup Ct, NY County 2011]) and this Court's Decision and Order dated January 3, 2011 (both affirmed by the Appellate Division, First Department (85 AD3d 474 [1st Dept 2011]) is granted without opposition (see Affirmation of No Opposition [Amy J. Weinblatt, Esq., Assistant Corp. Counsel, May 14, 2015]); the motion is also deemed a motion for relief pursuant to CPLR 5015 (a) (2); upon renewal, it is ORDERED that the motion for relief is granted; it is ORDERED that the Decision, Order and Judgment dated April 23, 2010 and the Decision and Order dated January 3, 2011 are hereby vacated; it is ORDERED and ADJUDGED that the original petition is granted to the extent that respondent is directed to remove the name, address and other information of Joseph Viola from the portion of the petitioner's New York birth certificate listing father's information, and that the respondent shall, upon petitioner's request and payment of the standard copy fee, issue to petitioner a new birth certificate with the father's information section left blank.

Petitioner's allegations and the prior legal analysis were set forth in the prior decisions noted supra.

Petitioner has here met her burden of demonstrating entitlement to the relief sought. Petitioner has shown that the intervening exhumation of Mr. Viola's remains (Stephen A. Ferrandino, J.S.C., Albany County, January 13, 2012) and the DNA testing of the samples from those remains and from petitioner were newly discovered evidence within CPLR 5015 (a) (2), which was not previously available and which would have likely produced a different result on the prior motion.



Petitioner has demonstrated, by clear and convincing evidence, that Mr. Viola was not, and could not have been, her biological father. She has shown that the DNA testing was performed according to standard protocols by a recognized, well-qualified forensic scientist, Stephanie Beine, experienced in DNA analysis, employed by an accredited firm, Genetic Technologies, Inc., certified internationally and by the New York State Department of Health. Petitioner has shown that the samples from her and from Mr. Viola's remains were appropriately taken and transferred to prevent contamination and that all testing was performed in duplicate; the results were replicated.



"By comparing the genetic profiles from the buccal swabs of Nina Montepagani and the tissue of Joseph Viola, it is clear that Mr. Viola is missing the obligate paternal allele at four of the twelve reported genetic markers therefore; he is excluded as the biological father of Nina Montepagani. For example, at genetic marker D19S433, Ms. Montepagani's profile at this marker is 12,15. In order for Mr. Viola to be considered her biological father, he must either have a 12 or a 15 in his profile. He has neither. He is a 13,14. This same pattern follows for the genetic markers vWA, D18S51 and FGA." (Montepagani Aff., Beine Aff. at ¶ 17.)



In sum, because the DNA testing found that petitioner's and Mr. Viola's DNA did not share genetic profiles, the testing, within a reasonable degree of scientific certainty, excluded Mr. Viola from having been petitioner's biological father.

Respondent has not offered any evidence to the contrary; indeed, respondent submitted an affirmation of no opposition. Nothing in the submitted papers raises a triable factual question. Accordingly, based on all the evidence, which the Court finds clear and convincing, the Court concludes that Mr. Viola was not petitioner's biological father and that petitioner has shown entitlement to the removal of Mr. Viola's name and personal information from petitioner's birth certificate, and the issuance of a new New York birth certificate that does not name Mr. Viola as petitioner's father and that does not include Mr. Viola's personal information.

Moreover, petitioner has compellingly shown by the DNA evidence offered here, that the interest of justice is served by the deletion of clearly erroneous paternity data from her birth certificate. With this correction of the official records of petitioner's birth, neither petitioner nor her children will be further encumbered by a factually incorrect New York document, or be thereby disqualified from attempting to pursue claims in the Italian courts that another man, Sebastiano Raeli, who allegedly died five years ago, was petitioner's biological father. This Court does not opine on that issue or on any other that might arise in the other litigation.



Copies by mail to both sides.



Dated:6/10/15/s/, J.S.C.

New York, New York