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In the Matter of Morningstar

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 29, 2005
17 A.D.3d 1060 (N.Y. App. Div. 2005)

Summary

affirming grant of CPLR 3124 motion to compel discovery

Summary of this case from Sedden v. Postigo

Opinion

CA 04-01405.

April 29, 2005.

Appeal from an order of the Surrogate's Court, Erie County (Barbara Howe, S.), entered May 25, 2004 in a proceeding to establish heirs and intestate distributees of an estate. The order, insofar as appealed from, granted respondents' motion to compel postmortem DNA testing pursuant to EPTL 4-1.2 (a) (2) (C).

RUPP, BAASE, PFALZGRAF, CUNNINGHAM COPPOLA LLC, BUFFALO (R. ANTHONY RUPP, III, OF COUNSEL), FOR PETITIONERS-APPELLANTS.

HOGAN WILLIG, PLLC, AMHERST (DIANE R. TIVERON OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

Present: Green, J.P., Scudder, Gorski, Pine and Lawton, JJ.


It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioners, marital children of decedent and administrators of his estate, initiated this proceeding by filing a petition seeking a decree establishing the right of inheritance to real property owned by decedent at the time of his death. Respondents, alleged nonmarital children of decedent, filed a cross petition seeking a decree establishing that they are each entitled, as intestate distributees, to inherit a share of decedent's estate. Surrogate's Court properly granted respondents' motion pursuant to CPLR 3124 seeking to compel the production of available blood and/or tissue samples of decedent for the purpose of conducting DNA testing. To establish their alleged inheritance rights under EPTL 4-1.2 (a) (2) (C), respondents are required to establish paternity by clear and convincing evidence and show that decedent openly and notoriously acknowledged them as his children ( see Matter of Bonanno, 192 Misc 2d 86, 88-89). The results of DNA testing may be used to satisfy their burden of establishing paternity ( see Matter of Thayer, 1 Misc 3d 791, 793; Bonanno, 192 Misc 2d at 88). Contrary to the contention of petitioners, there is no basis in the language of the statute or the circumstances of this proceeding for requiring respondents to demonstrate first that decedent openly and notoriously acknowledged them as his children before DNA testing may proceed ( cf. Matter of Seekins, 194 Misc 2d 422, 424; see generally Matter of Santos, 196 Misc 2d 972, 974-975; Bonanno, 192 Misc 2d at 88).


Summaries of

In the Matter of Morningstar

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 29, 2005
17 A.D.3d 1060 (N.Y. App. Div. 2005)

affirming grant of CPLR 3124 motion to compel discovery

Summary of this case from Sedden v. Postigo

affirming grant of CPLR 3124 motion to compel discovery

Summary of this case from Gano v. White

In Matter of Morningstar (17 AD3d at 1060) the Appellate Division, Fourth Department, held that alleged nonmarital children were entitled to posthumous DNA testing to establish their inheritance rights under EPTL 4-1.2 (a) (2) (C).

Summary of this case from In re Williams
Case details for

In the Matter of Morningstar

Case Details

Full title:In the Matter of RAY F. MORNINGSTAR, Deceased. RAY D. MORNINGSTAR et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 29, 2005

Citations

17 A.D.3d 1060 (N.Y. App. Div. 2005)
794 N.Y.S.2d 205

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