| Matter of Davis |
| 2008 NY Slip Op 08734 [56 AD3d 553] |
| November 12, 2008 |
| Appellate Division, Second Department |
| In the Matter of the Estate of James E. Davis, Deceased. KenyanPenceal, Respondent; Thelma Davis, Appellant. |
—[*1] Derek P. McDowell, Brooklyn, N.Y., for respondent.
In a compulsory accounting proceeding, Thelma Davis, the administrator of the estate ofJames E. Davis, appeals from an order of the Surrogate's Court, Kings County (Lopez-Torres,S.), dated March 19, 2008, which granted the petitioner's motion for leave to renew his priormotion, inter alia, to direct the New York City Medical Examiner to provide biological materialof the decedent sufficient to conduct genetic marker testing, commonly known as DNA testing,and upon renewal, among other things, directed the New York City Medical Examiner to providebiological material sufficient to conduct genetic marker testing, and denied her cross motion todismiss the proceeding.
Ordered that the order is reversed, on the law, with costs payable by the petitioner personally,and the matter is remitted to the Surrogate's Court, Kings County, for a hearing on the issue ofwhether the decedent openly and notoriously acknowledged the petitioner as his son and for anew determination of (1) the petitioner's motion for leave to renew his prior motion, inter alia, todirect the New York City Medical Examiner to provide biological material of the decedentsufficient to conduct genetic marker testing, commonly known as DNA testing, and (2) theappellant's cross motion to dismiss the proceeding, in accordance herewith.
On a prior appeal in this case, this Court reversed an order dated March 18, 2005, grantingthe petitioner's original motion, inter alia, to direct the New York City Medical Examiner toprovide biological material of the decedent sufficient to conduct genetic marker testing,commonly known as DNA testing, on the ground that the evidence submitted in support of themotion "does not describe an open and notorious acknowledgment of paternity" (Matter of Davis, 27 AD3d 124,128 [2006]). This Court [*2]further noted that "the order mustcontain safeguards to insure the genetic material provided by the petitioner for comparison is infact from the petitioner. The order appealed from failed to include such safeguards" (id.at 129-130). The decision stated that "[i]f the petitioner establishes open and notoriousacknowledgment by clear and convincing evidence, his motion for DNA testing should begranted" (id. at 129). The decretal paragraph remitted the matter to the Surrogate's Court,Kings County "for a hearing on the issue of whether the decedent openly and notoriouslyacknowledged the petitioner as his son and for a new determination of the petitioner's motion forDNA testing in accordance herewith" (id. at 130).
On February 5, 2008 this Court decided Matter of Poldrugovaz (50 AD3d 117, 121 [2008]), whichoverruled so much of the decision in Matter of Davis (27 AD3d 124, 129 [2006]), as held that a motionfor DNA testing should be denied "absent clear and convincing proof that the decedent openlyand notoriously acknowledged that the petitioner was his child" (Matter of Poldrugovaz,50 AD3d at 119), on the ground that that standard of proof imposed an evidentiary thresholdwhich was "too high." However, Matterof Poldrugovaz (50 AD3d 117, 121 [2008]) adhered to the holding in Matter ofDavis "to the extent it requires a party seeking court-ordered posthumous genetic markingtesting to provide some evidence that the decedent openly and notoriously acknowledgedpaternity prior to obtaining an order authorizing such testing" (Matter of Poldrugovaz, 50AD3d at 121).
Rather than conduct a hearing as directed by this Court, the Surrogate asked the petitioner torenew his motion, inter alia, to direct the New York City Medical Examiner to provide biologicalmaterial based upon the decision of this Court in Matter of Poldrugovaz (50 AD3d 117 [2008]). The appellantcross-moved to dismiss the compulsory accounting proceeding on the ground that the motion forrenewal "contains no evidence of open and notorious acknowledgment." The Surrogate, in theorder appealed from dated March 19, 2008, granted renewal and, in effect, reinstated its priororder dated March 18, 2005.
Upon remittitur, a court is without power to do anything except to obey the mandate of thecourt making the remittitur, and if the remittitur is erroneous in any respect, the appropriateremedy is a motion to amend it (seeMatter of Ferrara, 50 AD3d 899 [2008]; Wiener v Wiener, 10 AD3d 362 [2004]). Since the order enteredupon renewal is contrary to both the determination of the prior appeal in this case (see Matter of Davis, 27 AD3d 124,128 [2006]) and the subsequent determination of this Court in Matter of Poldrugovaz (50 AD3d117 [2008]), we reverse and remit the matter to the Surrogate's Court, Kings County, tocomply with our earlier directive (seeWiener v Wiener, 10 AD3d 362 [2004]). However, pursuant to Matter of Poldrugovaz (50 AD3d117 [2008]), at the hearing upon remittitur, the petitioner need only present some evidenceof open and notorious acknowledgment of paternity in order to establish entitlement to geneticmarker testing. Rivera, J.P., Skelos, Angiolillo and Balkin, JJ., concur.