Brief on Appeal

94 A.D.2d 667, 462 N.Y.S.2d 609

Supreme Court, Appellate Division, First Department, New York

In the Matter of Barbara McVey, Appellant,
Marshall Papier, Respondent

May 19, 1983

Order of the Family Court, Bronx County (Kram, J.), dated March 14, 1980, affirmed, without costs.

A review of the evidence leads to the conclusion, as found by the Trial Judge, that paternity was not established.

Concur — Kupferman, J. P., Sandler, Silverman and
Bloom, JJ.

Asch, J., dissents in a memorandum as follows:


Asch, J.

I am motivated to dissent in this case not only because an accurate resolution of the issue of paternity is so important to the parties and the infant herein but also because of the ripple of consequences which flows in its wake. The human leukocyte antigen (HLA) test now affords the technological possibility of determining paternity to a 95% certainty. The HLA technique was available at the time that the matter was heard in the Family Court even though it was not expressly made admissible by statute until March of 1981. While the proceeding was still pending in the Family Court, both parties were amenable to the administration of blood-grouping tests including the HLA. The consequences of not ascertaining paternity as accurately as possible are too serious to permit the date of the actual enactment of the law to stand as a technical bar to the employment of the HLA test.