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Damages

Tuesday, April 12, 2011

Damages

The following case is posted for informative purposes only.  The posting of this case does not in any way reflect Marzano & Sediva’s legal opinion or view on the underlying matter. Furthermore, this law firm, nor any attorney or lawyer affiliated with this law firm, did not represent any of the  parties in the action.

Rienzi & Sons, Inc., Plaintiff-Counterclaim Defendant v. N. Puglisi & F. Industria Paste Alimentari S.P.A. and Francesco Pulejo, Defendant-Counterclaim Plaintiff, 08-CV-2540 (DLI)(JMA)

US Eastern District Court

Decided: March 30, 2011

MEMORANDUM AND ORDER

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Defendant-Counterclaim Plaintiff N. Puglisi & F. Industria Paste Alientari S.P.A. ("Puglisi") brings this motion, pursuant to Fed. R. Civ. P. 72(a), to set aside or modify two decisions by Magistrate Judge Joan M. Azrack. The first decision, dated July 8, 2010, precluded Puglisi from asserting supplemental damages. The second decision, dated July 20, 2010, denied Puglisi's request to preclude Plaintiff-Counterclaim Defendant Rienzi & Sons, Inc. ("Rienzi") from asserting supplemental damages. For the reasons set forth below, Puglisi's motion to set aside or modify the magistrate's decisions is denied.

BACKGROUND

1. PUGLISI'S SUPPLEMENTAL DISCLOSURE

On August 1, 2008, pursuant to Rule 26 of the Federal Rules of Civil Procedure, the parties submitted a joint Rule 26 Report. In the Report, Puglisi disclosed the computation of damages for Rienzi's breach of contract as E1,121,481.40, plus interest. This amount remained the same in (1) the Puglisi's Answer to the Complaint with Counterclaim, filed August 4, 2008, (2) its Answer to the Amended Complaint with Counterclaim, filed September 29, 2008, (3) its Proposed Amended Answer to the Amended Complaint with Counterclaim, filed December 23,

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2009, and (4) its Amended Answer to the Amended Complaint with Counterclaim, filed June 2, 2010.

Nevertheless, on the eve of trial, Puglisi attempted to amend the computation with a supplemental disclosure listing damages that arose from filing for bankruptcy in Italy and liquidating the company's assets. Rienzi objected to the admission of the supplemental damages. In an Order dated July 8, the magistrate judge held that Puglisi failed to comply with Rule 26, and thus, pursuant to Rule 37, Puglisi was precluded from amending the initial disclosure of the computation of damages with the supplemental disclosure. (Order dated July 8, 2010, Docket Entry 53.)

2. RIENZI'S SUPPLEMENTAL DISCLOSURE

In response to the magistrate judge's order precluding Puglisi from supplementing its damages, Puglisi requested that Rienzi also be precluded from asserting its supplemental damages.

The history of Rienzi's assertion of damages is as follows. On September 10, 2008, Rienzi filed its amended complaint, alleging that it agreed to advance funds that were needed to pay for Puglisi's defense of a United States Department of Commerce anti-

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dumping and countervailing duty investigation. The amended complaint further alleged that, as long as Puglisi continued to provide pasta products to Rienzi, Puglisi would reimburse Rienzi one-half of the legal expenses incurred with regard to the investigation. In the event that Puglisi stopped providing Rienzi with pasta products, Puglisi would reimburse Rienzi the full amount of the legal fees expended by Rienzi on Puglisi's behalf. The complaint further alleged that, during the investigation, Rienzi paid approximately $2,000,000.00 towards Puglisi's defense of the anti-dumping and countervailing duty investigation. The complaint further asserted that Rienzi paid approximately $30,000 in costs, including attorney and consulting fees.

On November 10, 2008, Rienzi provided an interrogatory response to Puglisi. In the document, Rienzi stated that $1,000,000 or more in damages were owed because of legal fees paid on behalf of Puglisi. It also stated that it incurred $30,000 in costs, including attorney and consulting fees, for an additional attempt to have the countervailing duty reduced. On November 10, 2008, Rienzi also provided an invoice supporting the $30,000 in costs, including attorney and consulting fees, for an additional attempt to have the countervailing duty reduced. (Pl. Mem. Ex. 10.)

On November 18, 2008,1 Rienzi delivered to Puglisi's attorney documentation supporting the legal fees incurred. Although the documents provided listed the amounts due, Rienzi did not provide a summation of the total amount due. (Pl. Mem. 10 & Ex. 7.) However, a review of the supporting documentation demonstrates that the sum of the amounts owed was $2,495,000. (Id.)

On July 1, 2010, Rienzi filed a second supplemental disclosure. (Pl. Mem. Ex. 8.) The supplemental disclosure stated that "Rienzi suffered damages as a result of Defendants' breach of contract and breach of joint venture…in the approximate amount of $2,525,000, representing legal fees paid by Rienzi, less amounts totaling approximately $1,000,000 (which represent approximately the amount of legal fees which were excused from payment), leaving an amount unpaid of approximately $1,525,000." (Pl. Mem. Ex. 8.) The chart of damages provided

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on November 18, 2008 is nearly the same as the chart provided on July 1, 2010. The only difference is that the July 1, 2010 chart included the additional $30,000, and provided the total of $2,525,000. (Compare Pl. Mem. Ex 7, with Pl. Mem. Ex. 8.)

On July 20, 2010, Puglisi requested that the court preclude Rienzi from submitting the supplemental damages. The magistrate judge denied Puglisi's request, stating that "Defendant-Counterclaim Plaintiffs had notice of the greater-than-anticipated legal representation and defense costs arising from the USDOC investigation and ample time to pursue any additional discovery." (See Order dated July 20, 2010.)

Puglisi has now moved to set aside both of the magistrate's orders.

STANDARD OF REVIEW

The parties dispute the appropriate standard of review. It is clear that, "[a]s to a nondispositive matter, '[t]he district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law.' As to a dispositive matter, any part of the magistrate judge's recommendation that has been properly objected to must be reviewed by the district judge de novo." Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010) (quoting Fed. R. Civ. P. 72(a)).

Puglisi argues that the magistrate judge's ruling precludes it from recovering consequential damages, and is thus dispositive and subject to de novo review. (Def. Obj. 11.) Rienzi replies in a conclusory fashion, without directly addressing Puglisi's arguments or case law, that it "knows of no reason why the clearly erroneous or contrary to law standard should not be followed." (Pl. Opp. 15.)

There is clearly some support for the assertion that a magistrate judge's decision limiting the damages that a party may recover should be reviewed de novo. See, e.g., Cohen v. City of

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New York, 2007 WL 2789272, at *3 (S.D.N.Y. Sept. 25, 2007). Nevertheless, the court need not decide this issue because, under either standard of review, the magistrate judge's decision should not be set aside and are adopted in full.

DISCUSSION

1. PUGLISI'S SUPPLEMENTAL DAMAGES

Puglisi has failed to comply with Rule 26's disclosure requirements. First, Puglisi's disclosure is untimely. Pursuant to Rule 26 of the Federal Rules of Civil Procedure, a party must disclose the computation of damages at or within fourteen days after the parties' Rule 26(f) conference. Fed. R. Civ. P. 26(a)(1)(A)(iii). The parties conferred on July 21, 2008, and drafted a Rule 26(f) Report. In the report, Puglisi asserted only a breach of contract claim and sought E1,121,481.40 in damages as a result of Rienzi's failure to pay for pasta that Rienzi ordered from Puglisi. The Rule 26(f) conference occurred on September 3, 2008, and the magistrate judge approved the parties' discovery schedule. Puglisi disclosed its computation four times after the conference, and each time it disclosed the same computation and the same amount in damages.

Nevertheless, 672 days after the Rule 26(f) conference, Puglisi attempted to disclose supplemental damages relating to the liquidation proceedings. Puglisi argues that its supplemental disclosure concerning the consequential damages was delayed because the computation of damages was not available until the liquidation proceeding concluded. Puglisi further argues that its witness speaks only Italian and that virtually all of its documents are in Italian. (Def. Obj. 14.) However, these excuses do not explain why Puglisi did not inform Rienzi that it would seek this type of damages, even if a definite figure was not available. Indeed, Puglisi never identified this category of damages in its initial disclosure. See, e.g., Design Strategy, Inc. v. Davis, 469 F.3d 284, 295-96 (2d Cir. 2006) (noting that the failure to

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identify a category of damages that differs from the damages previously sought violates Rule 26); Austrian Airlines Oesterreichische Lufverkehrs Ag v. UT Finance Corp., 2005 WL 977850, at *2 (S.D.N.Y. 2005) (even if plaintiff could not calculate its damages at the time of its initial disclosure "there is no reason that it did not disclose its currency conversion damage theory") (emphasis in original).

Second, Puglisi's disclosure is also void of any evidentiary material on which the computation is based. Puglisi asserts that the amounts it is seeking as a result of the liquidation, but fails to provide any factual basis for the assertion. Puglisi argues that all documents that would be used to support the supplemental damages claims had already been produced. (Obj. 9.) However, although Puglisi has produced documents it believes in necessary to support its claim, Rienzi is entitled to investigate the claim in order to defend itself. This investigation may require further proof than Puglisi has put forth.

Under Rule 37(c)(1) of the Federal Rules, a party that does not disclose information as required by Rule 26(a) may not offer the information as evidence unless its "failure was substantially justified or is harmless." Fed.R.Civ.P. 37 (c)(1). Rule 37 (c)(1) is designed to prevent the "sandbagging" of an opposing party with new evidence. Fleming v. Verizon N.Y., Inc., 2006 WL 2709766, at *7 (S.D.N.Y. Sept. 22, 2006); Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y. 2000); see also CSC Holdings, Inc. v. Berube, 2004 WL3541331, at *3 (E.D.N.Y. July 7, 2004) (Rule 37(c)(1) is designed to avoid "gamesmanship" and "to provide a strong inducement for disclosure of Rule 26(a) material") (internal quotation marks and citation omitted).

Despite the mandatory language of Rule 37(c)(1), however, the Second Circuit has held that preclusion is a discretionary remedy, even if "the trial court finds that there is no substantial

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justification and the failure to disclose is not harmless." Design Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir.2006). In deciding whether to exercise its discretion to exclude the offering document, the court should consider (1) the party's explanation for its failure to comply with the disclosure requirement, (2) the importance of the testimony of the precluded witness, (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony, and (4) the possibility of a continuance. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir.2006).

Here, Puglisi's only explanations for the failure to comply with the disclosure requirement are the fact that the computation of damages was not available until the liquidation proceeding concluded and that the relevant documents are in Italian. However, as noted above, these excuses do not explain why Puglisi did not inform Rienzi that it would seek this type of damages, even if a definite figure was not available.

The prejudice to Rienzi is particularly great because discovery is closed and would have to be reopened for Rienzi to appropriately respond to the damages calculations. See, e.g., Design Strategy, 469 F.3d at 296 ("The prejudice to the defendants in having to prepare for this evidence would have been severe, as discovery would have had to be reopened to determine whether Design's calculations were proper."); Spotnana, Inc. v. American Talent Agency, Inc., 2010 WL 3341837, at *2 (S.D.N.Y. Aug. 17, 2010) ("The prejudice to Spotnana is particularly great because discovery, which closed over four months ago, would have to be reopened for Spotnana appropriately to respond to ATA's damages calculations.").

Moreover, the closure of discovery also "weighs strongly against the possibility of a continuance." Spotnana, 2010 WL 3341837, at *2; see also Design, 469 F.3d at 296 ("[W]eighing heavily on both the prejudice and possibility of continuance factors was the fact

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that discovery had been closed…there was only a 'short time left before trial."'). Although a continuance is possible because no trial date has been set, the trial has been delayed only because of this motion. Precluding Puglisis' expert would only seek to prolong this action, filed almost three years ago. See Softel, Inc. v. Dragon Medical and Scientific Communications, Inc., 118 F.3d 955, 962-63 (2d Cir. 1997).

Because Puglisi has disregarded its discovery obligations without a sufficient explanation, these three factors outweigh the importance of the damages evidence, even though Puglisi may be denied any recovery under this theory as a result. Design, 469 F.3d at 296 ("Although the second Patterson factor favors Design because Design's evidence of lost profits was essential to proving these damages, all of the other factors weigh heavily in favor of exclusion."); Spotnana, 2010 WL 3341837, at *2 (even if the damages evidence is important to defendant, the other three factors outweigh such importance); see also 24/7 Records, Inc. v. Sony Music Entm't, Inc., 566 F. Supp. 2d 305, 318 (S.D.N.Y. 2008) (theory of damages precluded because plaintiff failed to make mandatory initial disclosure); Austrian Airlines Oesterreichische Lufverkehrs Ag v. UT Finance Corp., 2005 WL 977850, at *2 (S.D.N.Y. Apr. 28, 2005) ("The Court will not allow plaintiff Austrian Airlines to assert this new, additional damage theory at the eleventh hour."). Accordingly, Puglisi is precluded from supplementing its damages.

2. RIENZI'S SUPPLEMENTAL DAMAGES

Puglisi also argues that, if its supplemental damages are precluded, Rienzi's supplemental damages should also be precluded. Puglisi argues that the supplemental disclosure increased the legal fees Rienzi is seeking. However, the supplemental disclosure merely provided a summary of documents previously provided to Puglisi. Indeed, Rienzi had previously provided Puglisi with all of the supporting documentation for the damages sought.

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Although Rienzi should have provided its computation of damages earlier, sanctions are not warranted under the four factors set forth in Patterson v. Balsamico, 440 F.3d 104 (2d Cir. 2006). Despite the fact that Rienzi has not explained why it waited so many months to provide the calculation of the sum, Rienzi's damages are an important part of its case. Moreover, Puglisi is not prejudiced by having to meet the supplemental disclosure because it had all of the supporting documentation prior to the supplemental disclosure. Therefore, Puglisi had ample opportunity to review and investigate the alleged damages. Finally, because Puglisi had all of the documentation, there is no need for a continuance.

In sum, Rienzi is permitted to supplement its damages to provide the sum of its previously provided damages calculation.

CONCLUSION

For the reasons set forth above, Puglisi's motion to set aside or modify two decisions by the magistrate judge is denied.

SO ORDERED.

1. At various points throughout their brief, plaintiff refers to the date on which it provided documents to the defendant. It states it was November 18, 2008 (Mem. at 11), November 18, 2009 (Mem. at 10), and November 18, 2010 (Mem. at 11). Based on the documentation, it appears that counsel intended to state November 18, 2008. Similarly, plaintiff refers at one point to Exhibit 6, when it appears that it intended to refer to Exhibit 7. (See Mem. 11.) The court cautions counsel to be more careful when drafting memoranda of law, particularly when referencing pertinent facts and exhibits.


 


Tuesday, April 12, 2011

Wills Trusts and Estates

The following case is posted for informative purposes only.  The posting of this case does not in any way reflect Marzano & Sediva’s legal opinion or view on the underlying matter. Furthermore, this law firm, nor any attorney or lawyer affiliated with this law firm, did not represent any of the  parties in the action.

 

 

Decided on January 3, 2011

 

Supreme Court, New York County

 

 

 

In the Matter of the Application of Nina (Formerly Sebastiana) Viola Montepagani, Petitioner,

against

The New York City Department of Health, Division of Vital Records, Respondent.

 



104767/09


Petitioner moves to renew and reargue the Court's decision, order and judgment dated April 23, 2010, which dismissed the petition for an order directing respondent to delete the name of Joseph Viola from petitioner's birth certificate as her father, and to leave it blank.



BACKGROUND

The background allegations of the petition were set forth in the Court's prior decision, order and [*2]judgment dated April 23, 2010. See Goldberg Affirm., Ex A. Petitioner was born on June 24, 1952. According to the petition, petitioner's birth certificate lists Anna Viola as petitioner's mother and Joseph Viola as her father. Anna Viola died in 1957 when petitioner was 5 years old; Joseph Viola died in 1987.

Petitioner claims that Joseph Viola, who was married to her mother at the time of her birth, was not her biological father. Instead, she claims that Sebastiano Raeli, an Italian national, is her biological father. In Italy, petitioner is attempting to assert rights in Raeli's estate. According to petitioner, Raeli repeatedly declared himself to be petitioner's father, promised to leave a substantial estate to petitioner (allegedly his only child), but thereafter reneged on this alleged promise. Petitioner is attempting to challenge the estate distribution in a court in Italy. At the time of the petition Raeli was purportedly living, but according to petitioner's counsel, Raeli "died earlier this year [2010]." Goldberg Reply Affirm. ¶ 8; Montepagani Aff. ¶ 21. However, it appears that the Italian court will not consider petitioner's application in Italy for a determination of paternity so long as Viola's name appears as the name of petitioner's father on petitioner's birth certificate.

Petitioner had submitted unauthenticated documents to establish that Raeli acknowledged petitioner as his daughter. Petitioner also contended that Joseph Viola had no access to petitioner's mother during the period when petitioner was conceived. By decision, order, and judgment dated April 23, 2010, this Court denied the petition because petitioner had not overcome the legal presumption of Joseph Viola's paternity by clear and convincing evidence. The Court found no clear and convincing evidence that Raeli ever held out petitioner as his daughter to the public, because, among other things, the documents purportedly signed by Raeli were not authenticated. The Court also found that the argument of lack of access did not overcome the presumption of paternity because petitioner did not rule out the possibility that she was conceived when Joseph Viola reunited with petitioner's mother when she entered the United States on October 23, 1951, and that petitioner could have been born prematurely.

DISCUSSION



As to reargument, petitioner argues that the Court erred in "evaluat[ing] the Petition as if this was a motion for summary judgment." Goldberg Affirm. ¶ 6. Petitioner contends that she was not obligated "to present each and every element of her proof that might be adduced at trial . . ." Id. ¶ 11. Petitioner further argues that the Court "misunderstood a statement" in the affirmation of petitioner's counsel. Id. ¶ 7. Petitioner contends that the petition sought only an order directing respondent to delete Joseph Viola's name from petitioner's birth certificate, and nothing more. Thus, petitioner reasons that "there was no necessity for the Court . . .to rule that the Petition has to be dismissed since Raeli is not a party before the Court." Id. ¶ 20. Petitioner also argues that the petition was in the nature of a writ of mandamus, and that the Court "should refer the case to the Appellate Division for an evidentiary hearing" pursuant to CPLR 7804 (g) should the Court still have evidentiary questions about the petition. Id. ¶ 13. Lastly, petitioner asserts that respondent did not dispute the allegations of the petition.

Petitioner fails to demonstrate that the Court overlooked or misapprehended any applicable law or facts in its prior decision, order and judgment. Due to the nature of a special [*3]proceeding, "the court in which the proceeding is initiated will apply summary judgment analysis . . . ." Trustco Bank NA v Strong, 261 AD2d 25, 27 (3d Dept 1999).

Any ambiguity in the nature of the petition was inherent in its wording and that of the supporting affirmation of petitioner's counsel. Although the petition did seek to remove the name of Joseph Viola from petitioner's birth certificate, Paragraph 17 of the prior affirmation of petitioner's counsel (which the Court inadvertently cited as paragraph 14) also stated, "This is precisely what this Petitioner seeks here: a declaratory judgment determining that Joseph Viola was not her natural father and that Sebastiano Reali [sic]was." Goldberg Affirm., Ex B, at 6 (emphasis added). Based on this clear statement in the affirmation, the Court necessarily had to address in its prior decision, order, and judgment the issue of whether that relief could be granted given that Raeli was not joined as a necessary party to the petition.

"Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right' to the relief requested." Matter of Council of City of New York v Bloomberg, 6 NY3d 380, 388 (2006). In addition, "there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief." Matter of Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educ. Servs., 77 NY2d 753, 757 (1991). Here, nothing in the petition indicated that the petition was in the nature of mandamus. Neither did the petition, its supporting papers or these motion papers indicate that a demand was made upon respondent to remove the name Joseph Viola from petitioner's birth certificate prior to the petition. In addition, petitioner cites no law which requires respondent to remove the name Joseph Viola from her birth certificate at her request. Article 207.01 (c) of the Health Code of the City of New York states, in pertinent part:

"No application [to amend a birth certificate] shall be approved unless the Commissioner or his designee is satisfied that the evidence submitted shows the true facts and that an error was made at the time of preparing and filing of the certificate, or that the name of a person named in a birth certificate has been changed pursuant to court order."



New York City Health Code (24 RCNY) § 207.01.

Petitioner has not demonstrated that CPLR 7804 (g) applies to the petition. "A substantial evidence' question is presented only where a quasi-judicial evidentiary hearing has been held." Matter of Halperin v City of New Rochelle, 24 AD3d 768(2d Dept 2005). Here, petitioner has not demonstrated that respondent denied a request from petitioner to amend her birth certificate following an evidentiary hearing on the record, or that the administrative agency was required by law to have held such a hearing.

Finally, whether the City disputed the petition's allegations is not determinative of whether petitioner met her burden on the petition. As discussed above, some of the documents which petitioner submitted were to support the claim that Raeli acknowledged that he was petitioner's father. However, petitioner did not join the one person who might have had an interest in refuting petitioner's claim about the documents presented when Raeli was alive.

As to renewal, respondent points out that the evidence which petitioner wishes to be considered on this motion does not constitute "newly discovered evidence." "While this evidence was not technically newly discovered, this requirement should be relaxed in the [*4]interests of justice." Postel v New York Univ. Hosp., 262 AD2d 40, 42 (1st Dept 1999). Therefore, in the interests of justice, this Court will grant petitioner leave to renew her prior petition upon the additional exhibits submitted on this motion.

As discussed in the prior decision, order and judgment, the petition seeks to delete the name of Joseph Viola as the father from petitioner's birth certificate. The relief sought implicates the presumption of legitimacy, because petitioner was born during the marriage of her mother to Joseph Viola. "A child born during marriage is presumed to be the biological product of the marriage and this presumption has been described as one of the strongest and most persuasive known to the law.'" Murtagh v Murtagh, 217 AD2d 538, 539 (2d Dept 1995)(citations omitted). "Although this presumption operates most commonly in cases in which the issue involved is not the validity of the parents' marriage, but, rather, the paternity of the child, it does come into play in any case in which legitimacy is in issue." Matter of Fay, 44 NY2d 137, 141-142 (1978)(citations omitted).

Although petitioner states that the petition is not a paternity proceeding, the legal presumption of legitimacy comes into play in this petition. Currently, petitioner's birth certificate indicates that Joseph Viola is her father. Petitioner is claiming that she is an illegitimate child, i.e., a child of unmarried parents—her mother and Sebastiano Raeli, whom petitioner claims acknowledged her as his own daughter. As this Court previously stated, by removing Viola's name from the birth certificate, "[s]uch a change would, in effect, mean that petitioner's biological father is unknown." Goldberg Affirm., Ex A [Decision, Order, and Judgment], at 3.

This presumption of legitimacy may be rebutted by clear and convincing proof excluding the husband as the father or otherwise tending to disprove legitimacy.'" Murtagh v Murtagh, 217 AD2d 538, 539 (2d Dept 1995)(citation omitted). Under the clear and convincing standard, petitioner must submit evidence that "makes it highly probable that what [she] claims is what actually happened." PJI 1:64.

Petitioner argues that the lower standard of "preponderance of the evidence" should be applied:

"There are many reasons why the father's name need not be on a child's birth certificate and each of these reasons is compelling in and of itself. The first instance is where the father is unknown to the mother. Children are conceived through artificial insemination . . . .Women give birth to children in circumstances where they do not want to identify a father on the birth certificate. These women are not compelled to name a name.' . . . Is it clear and convincing evidence' or is it something less. Given the fact that the social sensibility in having a child born of parents identified in his/her birth certificate is now no longer so compelling, what should the burden be?"



Goldberg Affirm. ¶¶ 30, 32. Counsel advocates that the Court take judicial notice that "the stigma associated with a birth out-of-wedlock has largely been erased in the past fifty years or more." Id. ¶ 24.

The Court is unpersuaded that a lower evidentiary standard should apply. The fact that a father's name does not appear on a birth certificate in some cases that do not apply here is not a basis for lowering the evidentiary standard that applies to removing the name of an individual [*5]listed on a birth certificate as a parent. The Court is unpersuaded that the presumption of legitimacy should be weakened because it is purportedly more socially acceptable for children to be born out-of-wedlock.

Here, petitioner has not met her burden of demonstrating, by clear and convincing evidence, that Joseph Viola, her mother's husband, was not her father. Petitioner's self-serving, hearsay statements that Raeli told everyone that petitioner was his daughter are not competent evidence. Petitioner claims that she was named after Sebastiano Raeli, in that her middle name was Sebastiana. However, petitioner does not state the source of that information, for her mother died when petitioner was age 5, and petitioner only "sincerely doubt[s] that even Jospeh Viola did not know (at the time of my birth and naming) that I was named for Sebastiano Raeli." Montepagani Aff. ¶ 17. Petitioner's documents do not make it highly probable that Raeli, not Viola, was her biological father.

Petitioner also claims that Joseph Viola had no access to petitioner's mother during the period when she was conceived. It is undisputed that petitioner was born on June 24, 1952. Petitioner maintains that Joseph Viola entered the United States on October 22, 1950, and that her mother entered the United States on October 23, 1951 one year later, about eight months before petitioner was born. In the Court's prior decision, order and judgment, the Court indicated that the passport of Joseph Viola was not authenticated, and that petitioner did not submit all of the pages of the passport, which was done on this motion.

The Court reasoned that petitioner did not meet the clear and convincing standard of proof because petitioner did not rule out the possibility that she could have been born prematurely. On this motion, petitioner refers to a reference sheet on the March of Dimes website, which purportedly states that less than 12% of women from the ages of 20 to 29 have a premature birth, and submits a copy of article in the Singapore Medical Journal on human pregnancy. Montepagani Aff.., Ex H. Petitioner also submits photographs, purportedly of petitioner as a baby at her baptism four weeks after her birth (id., Ex I), and argues that she could not have been born prematurely because she was not a small baby in the photographs.

The article upon which petitioner relies is not relevant to petitioner's birth to an Italian mother in 1952. The conclusion of the article was that "Mean gestational age at the onset of labour for women native to the area of study was 272 days." Montepagani Aff., Ex H at 1. The area of study comprised of women who "belonged to the local ethnic group of South Asia and was from the Udupi district of Karnataka in South India." Id. at 2.

Petitioner argues that "there is a legal presumption that a birth is full term at 40 weeks," citing Taiwana Y v Benjamin Z, 204 AD2d 790 (3d Dept 1994). However, that case does not stand for such a legal presumption. In Taiwana Y, the petitioner sought to adjudicate the respondent as the father of her child at a filiation hearing. Taiwana Y. testified that she had engaged in sexual relations on October 25, 1988 with the respondent, and that she gave birth to a child on August 10, 1989, and introduced the results of a human leukocyte antigen (HLA) test, which reported the probability of the respondent's paternity to be 99.41%. Notations in hospital records indicated that the gestation period of Taiwana Y.'s child was 37.6 weeks. The Family Court dismissed the filiation proceeding. The Family Court reasoned that, given the date on which Taiwana Y. claimed that she had sexual relations with Benjamin Z., the child should have been born in July, assuming a 40-week gestation period. On appeal, the Appellate Division [*6]reversed, finding that Taiwan Y.'s testimony, Benjamin Z.'s silence at the filiation hearing, two sonogrMarzano Lawyers PLLC, and the HLA test results met the clear and convincing standard. Id.

Thus, on this motion, petitioner has not demonstrated that it was highly probable either that Raeli was petitioner's biological father, or that Joseph Viola was not petitioner's biological father. Accordingly, the presumption of legitimacy has not been rebutted.

CONCLUSION



Accordingly, it is hereby

ORDERED that petitioner's motion to renew and reargue is granted to the extent that renewal is granted, and upon renewal, the Court adheres to its prior order and judgment.

Dated: January 3, 2011

New York, New York

ENTER:

/s/

J.S.C.




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