Moussignac v Mama Prop. LLC

Supreme Court, Kings County

Decided on April 13, 2026

Index No. 511422/2025

Aaron D. Maslow, J.

The following numbered papers were used on this motion: NYSCEF Document Numbers 53-66, 70-83.

Upon the foregoing papers, and having heard oral argumentFN1, the within motion is [*2]determined as hereinafter set forth.

Introduction

This action concerns causes of action by Plaintiff Antony Moussignac, who seeks to rescind and set aside a 2022 deed from Defendant Daphne Amy, allegedly as sole heir of Andre Amy, who died in 2020, for a Brooklyn property located at 1804 Brooklyn Avenue, to Defendant Mama Property LLC, for the price of $680,000. Plaintiff claims that Daphne Amy fraudulently represented herself as the sole heir of the decedent, Andre Amy, whereas Plaintiff contends that she is one of four distributees entitled to a 25% intestate share of the property (see NYSCEF Doc No. 55). Plaintiff alleges that Defendant Globalserve Title Agency Corp. aided and abetted the fraudulent transaction, and that Defendant City Pro Contractors LLC trespassed improperly on the property.

Plaintiff now moves for an order compelling Daphne Amy to undergo DNA genetic marker testing, as part of discovery, to establish that she, Plaintiff, is an heir also. Defendant Daphne Amy opposes the motion, claiming a lack of proof, laches, and concerns about the reliability of the DNA testing (see NYCEF Doc No. 27).

In order to support her claim on kinship, Plaintiff provided her affirmation, stating that the decedent, Andre Amy, was present at the hospital when the Plaintiff was born. The reason Andre Amy did not sign Plaintiff's birth certificate was because he was planning to go to school in Pueblo, Mexico, and could not afford child support payments. Additionally, Plaintiff alleged that the decedent openly and notoriously acknowledged Plaintiff by calling Plaintiff a nickname, "Jinny." (See NYCEF Doc No. 55.) Additionally, it is attested by Plaintiff and her mother, Marie Moussignac, that Plaintiff stayed with the decedent for weeks at a time (see NYCEF Doc No. 56). Furthermore, Plaintiff points to a prior related action (Myriella Amy v. Mama Property LLC, Index No. 537810/2022 [Sup Ct, Kings County]), where another alleged daughter of the decedent sought similar relief. In that case, the Court ordered a DNA test, which resulted in a 99.7% likelihood of kinship between the siblings, leading to a settlement (see NYCEF Doc No. 54).

Defendant Daphne Amy, and her mother, Yolette Amy (Andre Amy's widow), counter that Plaintiff is unknown to them, that neither the decedent nor any of his family members ever mentioned her, and that Plaintiff was never introduced as a child of the decedent. Plaintiff has not produced any evidence that Andre Amy openly and notoriously acknowledged her. Moreover, the burden and expense associated with out-of-state DNA testing, especially if performed at separate facilities, should not be imposed on Defendant absent a foundational showing of kinship by Plaintiff.

Discussion

Under EPTL § 4-1.2 (a) (2) (C), a non-marital child is allowed to inherit from a father if paternity is "established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the parent openly and notoriously acknowledged the child as his or her own." In Matter of Betz (74 AD3d 1459 [3d Dept 2010]), it was held that a court may grant a motion for posthumous testing when the plaintiff provides such evidence and demonstrates that testing is reasonable and practicable under the totality of the circumstances.FN2Matter of Betz was decided taking into account the prior text of EPTL § 4-1.2 (a) (2) (C). Under an amendment enacted in Laws of 2010, chapter 64, the conditions for inheritance by a non-marital child were set forth in the alternative: "(i) evidence derived from a genetic marker test, or (ii) evidence that the parent openly and notoriously acknowledged the child as his or her own" (emphasis added).

CPLR 3101 mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." This is to be liberally construed (see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]). In determining whether to grant DNA genetic marker testing as a component of the discovery process, the Court evaluates the five factors detailed in Matter of Poldrugovaz (50 AD3d 117, 129 [2d Dept 2008]): (1) A reasonable possibility that the genetic testing will establish a match, (2) The practicability of obtaining the necessary samples, (3) The need for exhumation of the putative father's body, (4) Safeguards for reliability, and (5) Privacy and religious concerns.

The court finds that all of the Poldrugovaz factors have been satisfied or are not applicable:

(1) A reasonable possibility that the genetic testing will establish a match: The affirmations of Plaintiff Antony Moussignac and Marie Moussignac, her mother, support a reasonable possibility of a match between Antony and the late Andre Amy. Marie Moussignac attested to Antony being Andre Amy's daughter despite him not being listed on the birth certificate. He was in school and told her he could not take care of babies. He eventually became an agronomist. The relationship with Andre Amy went back to 1967 when they both lived in Haiti. After Marie moved to New York in 1970, the relationship continued there in 1973. Antony was born in 1974. Antony would stay with Andre for weeks at a time. Andre did visit Antony ("Toni"). Andre nicknamed her "Jinny" from the I Dream of Jeannie TV show. Submitted were photos of Marie and Andre. The reverse [*3]side of a 1985 photo contained an inscription to Jinny, the girl, from Andre, denoted as father. In a prior case, Myrielle Amy v. Mama Property LLC, there was a 99.7% DNA match, suggesting that Andre Amy fathered at east one other child out of wedlock.

(2) The practicability of obtaining the necessary samples: Both parties live in the United States, the Plaintiff in Florida and Defendant Daphne Amy in New York. It is quite practicable for both to provide swab samples. Since, as concluded below, testing shall take place in New York, there is no inconvenience to Defendant Daphne Amy.

(3) The need for exhumation of the putative father's body: Defendant Daphne Amy resides in New York and can be tested there. Plaintiff is willing to come up to New York to provide the sampling. There is no need to exhume Andre Amy's body.

(4) Safeguards for reliability: Both Plaintiff and Defendant Daphne Amy can provide swab samples at the same test facility. The same lab would process the samples. DNA testing has become routinely acceptable in evidence. Brooklyn DNA Testing, 36 Plaza Street East #1A, Suite 4, Brooklyn, New York 11238, has been identified as a reliable testing facility.

(5) Privacy and religious concerns: Defendant Daphen Amy has not offered any objections to DNA based on religious beliefs. This factor is more relevant when a corpse would be tested, resulting in disturbing the repose of the deceased. The deceased Andre Amy would not be tested.

It is important to note that Poldrugovaz dealt with compelling DNA testing from a deceased person. In this case there is the ability to compel DNA testing from a suspected living descendant of the deceased. Therefore, following the precedent set in Matter of McGuire (240 AD3d 1397 [4th Dept 2025]), this Court possesses the authority to compel known children of a decedent to submit to DNA testing to establish the parentage of a non-marital child.

The court finds Defendant Daphne Amy's opposition to lack merit. First, the objection based on a lack of sufficient evidence is incorrect. The Plaintiff has met the Poldrugovaz factors. It is noted that for a non-marital child to inherit, it is not a prerequisite that the decedent openly and notoriously acknowledged paternity, as per the revised EPTL § 4-1.2 (a) (2) (C). Marie Moussignac has provided sufficient details of her relationship with Andre Amy to warrant the conduct of DNA genetic testing. While Yolette Amy, Daphne Amy's mother, claims that Plaintiff is unknown to her and her entire family, this does not rule out her husband Andre having had an affair with a woman with whom he fathered a daughter. This motion implicates merely whether the testing should be ordered. It does not call for a determination of paternity. That is an issue to determined further down the road in this litigation.

Second, Defendant's raising the doctrine of laches does not carry weight. Laches require proof of an unreasonable delay and harm caused by that delay. In this case, Plaintiff acted after discovering the allegedly fraudulent deed transfer, and Defendant Daphne Amy has not shown any real harm that would ensue from discovery in the nature of DNA testing taking place. [*4]Finally, concerns regarding the reliability of the DNA genetic test are resolved by using a professional testing facility.

Conclusion

Plaintiff has satisfied the threshold required for DNA genetic marker testing. The DNA test is material and necessary in the prosecution of this action by Plaintiff.

It is hereby ORDERED as follows:

(1) Plaintiff's motion seeking to compel Defendant Daphne Amy to submit to DNA genetic marker testing is GRANTED.

(2) Both parties shall report on the same date to Brooklyn DNA Testing, 36 Plaza Street East #1A, Suite 4, Brooklyn, New York 11238, to be tested for DNA genetic markers relevant to whether they share a common father, no later than May 29, 2026, the date to be mutually arranged by their attorneys. To minimize acrimony, it is recommended that counsel or a law firm staff member for each of the two adverse parties be present.