Ray F. Davis and Pryde L. Trill, Respondents-Respondents. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of the ESTATE OF Ray F. MORNINGSTAR, Deceased. Ray D. Morningstar and Juanita Morningstar, as Administrators of the Estate of Ray F. Morningstar, Deceased, Petitioners-Appellants; Ray F. Davis and Pryde L. Trill, Respondents-Respondents.

Decided: April 29, 2005

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. 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.

 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, 745 N.Y.S.2d 813).   The results of DNA testing may be used to satisfy their burden of establishing paternity (see Matter of Thayer, 1 Misc.3d 791, 793, 769 N.Y.S.2d 863;  Bonanno, 192 Misc.2d at 88, 745 N.Y.S.2d 813).   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, 755 N.Y.S.2d 557;  see generally Matter of Santos, 196 Misc.2d 972, 974-975, 768 N.Y.S.2d 272;   Bonanno, 192 Misc.2d at 88, 745 N.Y.S.2d 813).

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

MEMORANDUM: