IN RE: the Estate of Gaetano BONANNO

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Surrogate's Court, New York County, New York.

IN RE: the Estate of Gaetano BONANNO, Deceased.

Decided: April 16, 2002

Arnold J. Kaplan, New York City, for respondent. Leonard Hochheiser, New York City, for petitioner.

The tortuous history of this paternity dispute demonstrates the need for clarification of the instances in which DNA results are admissible into evidence and the weight they are to be given in estate proceedings.   The undisputed facts are as follows:

Decedent died on January 24, 2000.   Petitioner commenced this proceeding to obtain his intestate share of decedent's estate based on a claim that he is decedent's non-marital son (see, EPTL 4-1.2[a][2] ), and to revoke the letters of administration granted to decedent's sister, the respondent herein.  (SCPA 1001[1] ) Respondent moves to dismiss the application on the grounds that petitioner is not decedent's biological son.   There is no evidence that decedent was married except for his death certificate, where petitioner's mother identified herself as decedent's wife.   Petitioner's birth certificate identifies a third party as petitioner's father.

To support his claim, petitioner asked the Court to order a DNA test to be performed on blood samples collected after decedent's death and retained by the Office of the Medical Examiner after conducting an autopsy.   The order was granted over respondent's objection that posthumously obtained DNA results are not admissible to support a paternity claim in an estate proceeding.

The test results on decedent's blood samples were definitive.   A 0% probability was assigned to the paternity question, and decedent was “excluded” as petitioner's biological father.   The results caused the parties to reverse their positions.   Petitioner now contends that a hearing should be held before the issue of paternity is decided.   Under the facts presented here, the Court disagrees.

A non-marital child can inherit from his or her father's estate under subclause [D] of EPTL 4-1.2[a][2] when a genetic marker test which “had been administered” to the father together with “other evidence” establishes clear and convincing evidence of paternity.   In Matter of Janis, 157 Misc.2d 999, 600 N.Y.S.2d 416, aff'd, 210 A.D.2d 101, 620 N.Y.S.2d 342, a child sought an order in a probate proceeding to exhume the remains of her putative father to obtain material for DNA tests, in her attempt to establish standing as distributee to contest the will.   Denying the request, Surrogate Roth noted that the EPTL expressly refers to genetic tests that had been administered to the putative father, and construed the statute as requiring such tests to be administered during the decedent's lifetime to satisfy the subclause [D] test.1  At the same time, however, the Court recognized that post-death genetic marker tests might be admissible under subclause [C] of EPTL 4-1.1[a][2], a companion clause that provides for a non-marital child to inherit on a showing of (1) “clear and convincing” evidence of paternity together with (2) evidence that the putative father “openly and notoriously” acknowledged the child as his own.  (Matter of Janis, 157 Misc.2d at 1001, 600 N.Y.S.2d 416.   See also, Matter of Johnson, NYLJ, Sept 17, 1998, at 26, col 5, and Matter of Sandler, 160 Misc.2d 955, 612 N.Y.S.2d 756.)

There is no basis in law or logic to exclude the results of posthumously conducted DNA tests on a decedent's genetic material from the category of “clear and convincing” evidence under EPTL 4-1.2[a][2][C]. This is particularly true where the material is available without the drastic remedy of exhumation, comes from a reliable source, and is amenable to accurate testing.2  Cf., Matter of Anne R., 167 Misc.2d 343, 634 N.Y.S.2d 339, aff'd, 234 A.D.2d 375, 651 N.Y.S.2d 539, lv. denied, 89 N.Y.2d 815, 659 N.Y.S.2d 855, 681 N.E.2d 1302.   To hold otherwise would ignore the precision that DNA testing contributes to the paternity issue.  (See, CPLR 4518[d] (genetic test results showing 95% probability of paternity or greater creates rebuttable presumption of paternity).)  “Neither the parties nor the courts need be blind to scientific reality.”  (King v. Tanner, 142 Misc.2d 1004, 1012-13, 539 N.Y.S.2d 617.)   The results of the DNA tests in this proceeding are admissible as relevant to the question of paternity under subclause [C] of EPTL 4-1.2[a] [2].

Where the possibility of paternity is conclusively eliminated by undisputed evidence, there is no issue of fact to be determined in a hearing.   Petitioner has submitted no scientific or other “clear and convincing” evidence of paternity to contradict the 0% possibility that decedent was petitioner's father.3

Petitioner's allegation of decedent's open and notorious acknowledgment of paternity,4 even if true, does not require a contrary result.   In order to obtain his intestate share petitioner must prove both open acknowledgment and actual paternity (EPTL 4-1.2[a][2][C] ), unless possibly an estoppel theory applies, see, Vito L. v. Filomena L., 172 A.D.2d 648, 568 N.Y.S.2d 449, which is not the case here.

Accordingly, the application of the petitioner to revoke the letters of administration granted to decedent's sister is denied, and letters issued to petitioner as co-administrator are hereby revoked.   Respondent's request for sanctions is denied.   The restraints previously imposed on the administrator are vacated as of thirty days from the date of the decree to be entered herein.

FOOTNOTES

1.   The Court also reasoned that the legislature did not intend to make a distinction between EPTL 4-1.2[a][2] subclause [D] and § 519 of the Family Court Act, enacted at the same time, which expressly requires administration of the genetic test prior to death to establish paternity in support proceedings.

2.   DNA testing is performed on molecules that retain their characteristics and therefore provide a reliable source for post-death testing.   See, Comment, Who Is My Daddy?   Using DNA to Help Resolve Post-Death Paternity Cases, 8 Alb L J Sci & Tech 151, 170 [1997].   In this proceeding, petitioner does not question the reliability of the testing that he himself requested.

3.   None of the cases that petitioner relies upon supports a contrary conclusion.  (E.g., Matter of Sekanic, 271 A.D.2d 802, 705 N.Y.S.2d 734 (hearing conducted under EPTL 4-1.2[a][2][C] where no DNA tests were offered into evidence);  Commissioner v. Abizeid, 168 Misc.2d 1005, 640 N.Y.S.2d 990 (hearing conducted where blood tests showed 99.5% evidence of paternity).)

4.   Petitioner's mother joined in his request to the Court and submitted affidavits which allege that decedent acknowledged petitioner as his son from the time of petitioner's birth and throughout decedent's lifetime.   Petitioner also submits documentary evidence in which the decedent refers to petitioner as decedent's “son,” including a lost will dated April 26, 1999, decedent's tax returns, and some personal memorabilia.

EVE PREMINGER, S.