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Saturday, May 21, 2011

Enforcement of an Italian Judgment in New York

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 September 22, 2005



570147/04 x

Giuseppe Sambataro, Plaintiff-Appellant,


Rocco Compagnone, Defendant-Respondent x


Plaintiff appeals from an order of the Civil Court, New York County, dated December 24, 2003 (Debra Rose Samuels, J.) which denied his motion for summary judgment in lieu of complaint pursuant to CPLR 3213.

Order dated December 24, 2003 (Debra Rose Samuels, J.) reversed, with $10 costs, and plaintiff's motion for summary judgment in lieu of complaint is granted.

Plaintiff is entitled to summary judgment in this action to enforce a default judgment issued by an Italian court. Even assuming, without deciding, that defendant's ultimate appearance in the Italian court did not constitute a voluntary appearance pursuant to CPLR 5305 (a) (2) (cf. CIBC Mellon Trust Company v. Mora Hotel Corporation, N.V., 100 NY2d 215 [2003], cert denied 540 US 948 [2003]), no basis is shown for us to deny recognition of the judgment (CPLR 5304). The Italian court had a valid basis for exercising jurisdiction over defendant under concepts recognized in New York law (CIBC Mellon Trust v. Mora Hotel Corporation, N.V., 296 AD2d 81, 96 [2002] aff'd 100 NY2d 215 [2003] cert denied 540 US 948 [2003] citing Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 5305 C5305:1, at 556). Defendant was served at his place of business in Vignola, Italy, at an address designated in his written correspondence with plaintiff. [*2]

Nor did defendant raise a triable issue as to whether he received notice of the proceedings in sufficient time to enable him to defend (CPLR 5304 [b][2]). A reasonable method of notification was employed and a reasonable opportunity to be heard was afforded to defendant (see, Gondre v. Silberstein, 744 F. Supp 429, 434 [EDNY, 1990]). We also note that it was not improper for plaintiff to place his supporting proof before the court by way of an attorney's affirmation annexing the foreign judgment, proof of service and other documentary evidence (Olan v. Farrell Lines Incorporated, 64 NY2d 1092, 1093 [1985]).

This constitutes the decision and order of the court.
I concur.
I concur.
I concur.
Decision Date: September 22, 2005

Friday, May 13, 2011

New York Divorce Law and Italy

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.

Centenaro v. Poliero

Decided on July 23, 2009

Supreme Court, Queens County

Strauss, J.

The parties, who are Italian citizens, were married in Italy in 1993, and there are four children of the marriage aged 13, 8, 6 and 4 years. The parties own a home in Vicenza, Italy and defendant is the Managing Director of Legor Group, a family-owned business also based in Vicenza, Italy. Plaintiff is unemployed but, in May of 2009, enrolled to take non-credit continuing education courses at New York University. Plaintiff alleges that the parties' marital difficulties began on 2000. The parties initially came to New York for a vacation in December 2006, and plaintiff claims that it was decided then that the parties "needed a new start on their marriage" and decided to move to New York. Defendant, however, maintains that the parties' decision to move to New York was based on his temporary stay to establish a New York office for Legor Group. In or about March 2007, the parties returned to New York, located an apartment and an office for the business, and enrolled the two eldest children in a school sanctioned by the Italian Ministry of Education. Defendant claims that the children were so enrolled so as to facilitate their return to Italian schools at the conclusion of the family's stay in New York, a claim that plaintiff now disputes. The younger two children were enrolled in public school. Defendant maintains that the apartment remained vacant until mid-July 2007, when the parties arrived in New York with the children, and [*2]defendant supplies copies of airline itineraries to support this claim. The parties returned to Italy for the Christmas holidays for approximately three weeks in December 2007 and, at the end of the school year in New York, vacated the rental apartment and returned to the marital home in Italy in June of 2008. The family resided in Italy until September 2008, whereupon the parties and the children returned to New York and rented a different apartment for ten months. The family again returned to Italy for the holiday school break in December 2008. Defendant maintains that, in December 2008, in anticipation of the family's return to Italy and the end of the school year, the parties booked tickets for a return to Italy on July 1, 2009. Defendant also supplies a copy of an invoice showing payment for the re-enrollment of the children in school in Italy for the 2009-2010 school year, which plaintiff now claims was done without her consent.

The parties' marital difficulties evidently ensued into the Spring of 2009. Defendant supplies a translated copy of a letter, dated April 14, 2009, from an Italian divorce lawyer on behalf of plaintiff, seeking a possible resolution of the "discord and tension" in the marriage. Defendant states that he then retained Italian divorce counsel and that "there have been discussions and negotiations between those attorneys." Plaintiff claims that in May of 2009 defendant blocked her credit card and became increasingly distant from the family. Plaintiff then commenced the instant action for divorce in New York on June 6, 2009. On June 23, 2009, defendant commenced an action for separation in Italy. On June 24, 2009, defendant filed the instant motion seeking to dismiss this action and commenced proceedings in the Federal court pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act regarding the children's return to Italy.

That branch of defendant's motion seeking dismissal of this action due to the failure of either party to meet the residency requirements of Domestic Relations Law § 230 is granted. Plaintiff, insofar as she has not yet filed her complaint, does not set forth which subdivision of section 230 applies for purposes of satisfying the residency requirements, but all require a period of residency of at least one year. (Domestic Relations Law § 230[1]-[5].)

There is no merit to plaintiff's contention that the instant motion to dismiss is premature on the grounds that a complaint has not yet been served. Rather, the court may take a "pragmatic approach...and consider DRL § 230 issues on the merits even though only a summons and not a complaint has been served." (Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book14, Domestic Relations Law §230, C230:4 at 36; Small v Small, 96 Misc 2d 469 [1978]; and see Silver v Silver, 57 AD2d 948 [1977].)

The courts have construed the residency requirements of Domestic Relations Law § 230 to mean that a party may either be domiciled in the State or have resided in the State for the requisite time period. (Unanue v Unanue, 141 AD2d 31 [1988]; Capdevilla v Capdevilla, 149 AD2d 312 [1989].) This interpretation recognizes that a party may have more than one [*3]residence, but that domicile, once established, is presumed to continue. (Unanue v Unanue, supra, at 39-40.) To constitute a domicile of choice, there must be both a physical presence in the state and the requisite intention to make the locality one's fixed and permanent home. (Unanue v Unanue, supra; Senhart v Senhart, 18 AD3d 642[2005]; and see Wildenstein v Wildenstein, 249 AD2d 12 [1998].) The courts will determine a party's domicile based upon "subjective intent," which, in turn, requires an examination of objective facts. (Unanue v Unanue, supra.) However, a mere intent or desire to reside in New York is not sufficient. (Esser v Esser, 277 AD2d 926 [2000].) In determining a parties' domicile, among the factors to be considered are the time period of New York residence, the length of any absence, the location of the children's schooling, the purchase of, or leasing out of, homes, the parties' places of worship, club memberships, performance of civic duties, and the filing of taxes or registration of automobiles. (Unanue v Unanue, supra; Bourbon v Bourbon, 259 AD2d 720 [1999].) The courts have determined that the legislative intent underlying the durational residency requirements was "to preclude...the use of our courts in matrimonial proceedings by spouses with no real ties to New York....for the sole purpose of obtaining matrimonial relief unavailable" in other states or jurisdictions. (Unanue v Unanue, supra, at 41; and see, Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book14, Domestic Relations Law §230, C230:1 at 28.)

Where the parties are shown to have many absences from this state, the court will look to see if there is "no other place to which the parties returned so frequently or with such regularity." (Weslock v Weslock, 280 AD2d 278 [2001]; Davis v Davis, 144 AD2d 621 [1988].) In this case, the place to which the parties returned with frequency and regularity was the marital home in Italy. The court finds that the parties have not resided in New York continuously, but resided here for two separate stays, each less than one year, punctuated by frequent and lengthy returns to Italy. While temporary absences from New York will not negate domicile, it remains that domicile must first be established. (Unanue v Unanue, supra.) In this case, reviewing the objective facts, it is noted that not only did the parties lease two different apartments in New York, complete with rental furniture, neither party owned property in New York. It is undisputed that all of the family's assets are located in Italy. The defendant filed a U.S. Non-resident Alien Income Tax return showing the family's Italian address, and neither party apparently registered to vote or drive in New York State. Nor does plaintiff make any showing of any civic duties undertaken during her stay in New York.

While plaintiff contends that she and the children attend church in New York, that she currently attends classes, and that she recently re-enrolled the children in New York schools, her mere desire to reside here will not satisfy the durational residency requirements. (See, Esser v Esser, supra.) Here, as in Esser, recent attempts to meet the criteria set forth in Unanue v Unanue (supra) will not establish that a party is a domiciliary of New York. Rather, it appears that plaintiff's recent attempts to establish residency were in anticipation [*4]of this divorce action itself. While much is made of the issue of the children's schooling, and whether or not the two eldest children were enrolled in a special school to facilitate their return to school in Italy, this factor alone is not controlling. The court finds an overall failure on plaintiff's part to demonstrate that either the continuous one-year period of residency was satisfied or that, prior to the Spring of 2009, she had any intention of making New York "a fixed and permanent home." (See Senhart v Senhart, supra.) Here, as in Senhart, the evidence is insufficient to show that the matrimonial domicile was ever in New York. Based upon all of the foregoing, the court finds that plaintiff's commencement of a New York action falls into the latter category of cases described in Unanue, where a party seeks only to obtain the benefits of New York matrimonial relief. (Unanue v Unanue, supra, at 41.)

Assuming arguendo, that plaintiff had met the durational residency requirements of Domestic Relations Law § 230, the court finds that the action must nevertheless be dismissed pursuant to CPLR 327 based on grounds of forum non conveniens. On a motion to dismiss on the ground of forum non conveniens, the plaintiff's choice of forum should generally not be disturbed, and the burden is on the movant to demonstrate the relevant factors that militate against a New York court's acceptance of the litigation. (Islamic Rep. of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984] cert denied 469 US 1108; Stravelle v Land Cargo, Inc., 39 AD3d 735, 736.) Among the factors weighed by the court in determining a motion to dismiss based on forum non conveniens are: 1) the burden on the New York courts; 2) the potential hardship to the defendant; 3) the unavailability of an alternative forum; 4) residency of the parties; and 5) that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. (Islamic Republic of Iran v Pahlavi, supra.) The great advantage of the doctrine of forum non conveniens is its flexibility based upon the facts and circumstances of each case. (Islamic Republic of Iran v Pahlavi, supra.)No single factor is controlling. (Turay v Beam Bros. Trucking, Inc, 61 AD3d 964, 966 [2009]; Smolik v Turner Constr. Co., 48 AD3d 452, 454 [2008]; Kefalas v Kontogiannis, 44 AD3d 624, 625 [2007].)

Initially, the court clearly sees both the parties and the children as domiciliaries and residents of Italy, and has already determined that the plaintiff cannot sufficiently establish herself as a resident or domiciliary of New York. The location of the operative facts is another important factor to be considered. The court finds that most, if not all, of the witnesses, evidence, marital assets, including a marital house in Vicenza and the Italian-based company, Legor Group, which would be subject to appraisal and equitable distribution, are all situated and located in Italy. The court would encounter both language barriers and certain delays in the appraisal and distribution of the marital assets. (Catapodis v Onassis, 2 Misc 234 [1956].) These facts lend a heavy weight in determining that this case would create an unnecessary burden on this court, as it is the convenience of the court, not that of the litigants, that controls the determination. (WilliMarzano Lawyers PLLC v Seaboard Airline R. Co, 9 AD2d 268 [1959].)

Insofar as the parties have been in negotiations with Italian lawyers throughout the [*5]Spring of 2009, and an action has since been commenced in Italy, the court finds that a suitable alternative forum is available. (Nasser v Nasser, 52 AD3d 306[2008].) The Court finds the Italian judicial system suitable for these parties to litigate the matters at bar. Both parties are Italian citizens, who were born in Italy, married in Italy, are residents of Italy, and who raised their children there. Both parties reap the economic fruits of an Italian-based company. Indeed, a parallel action is pending in Italy, and despite the fact that the Italian action was brought by the defendant subsequent to the instant action, New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus to New York. (Smolik v Turner Constr. Co., supra; Wentzel v Allen Mach., 277 AD2d 446 [2000]; Silver Lane Advisors v Bellatore, 2009 NY Slip Op. 51514 [Sup. Ct., NY County July 6, 2009].) The "first to file" rule is not to be followed mechanically, particularly when the actions are filed close in time. (Silver Lane Advisors v Bellatore, supra.) Moreover, the court finds that New York would be burdened with the task of adjudicating this matter all the while at the risk of having the foreign state determine the matter differently. (Sturman v Singer, 213 AD2d 324 [1995]; Hart v General Motors Corp., 129 AD2d 179 [1987].)

The court also finds that sustaining litigation in this forum would present an undue burden upon the defendant, who has since ceased his temporary residency here and returned to Italy. (Nasser v Nasser, supra.) Moreover, insofar as plaintiff herself indicates the marital difficulties began in 2000, a substantial amount of the underlying causes of action would necessarily have occurred in Italy, where the relevant witnesses would be located. The fact that the transactions out of which the cause of action arose occurred primarily in a foreign jurisdiction weighs strongly in favor of granting a dismissal on forum non conveniens. (Silver Lane Advisors v Bellatore, supra.)

Forum non conveniens relief should be granted when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice, the convenience of the parties, and the New York court system. (Silver v Great Am. Ins. Co., 29 NY2d 356, 361 [1972].) The issue at hand is best dealt with in the state where both parties to the case are citizens, where most, if not all, assets, witnesses, and substantive elements of the litigation are located, and where a parallel suit has already been filed. Given the action's marginal nexus to New York, the court determines that the action is properly dismissed on grounds of forum non conveniens.

Finally, the court considers the parties' claims concerning proceedings ongoing in Federal court, the Eastern District of New York, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act (referred to herein as the Hague Convention action). Although the existence of the Federal court proceedings would not, in and of itself, be grounds to dismiss a New York divorce action in its entirety, the court finds that the defendant is correct in that this court cannot properly address any custody claims in light of the Federal proceedings. The court first finds that movant sought only to stay or dismiss any custody proceedings in this court while the [*6]Hague Convention action was pending, and did not seek Hague Convention relief from this court. Rather this court, by defendant's motion, was made "aware" of the Hague Convention action. (See Barzilay v Barzilay, 536 F3d 844 [8th Cir 2008].) Defendant simply chose to exercise the right to seek relief under the Hague Convention in Federal court while simultaneously pursuing other remedies in this court. (See Gaudin v Remis, 415 F3d 1028 [9th Cir 2005].) It follows that it is not for this court to undertake the analysis as to whether the children have been "wrongfully removed" from their home state, nor does defendant request this court to undertake that analysis.

Accordingly, it is not necessary for this court to consider the abstention doctrines where, as plaintiff herself recites, the Hague Convention, codified in 42 USCS §11601, would prohibit a custody determination by this court until after a determination of whether the children were wrongfully removed or retained from the place of habitual residence is made. The court finds controlling the analysis of Yang v Tsui (416 F3d 199 [3rd Cir 2005]), that, were this action not already dismissed on other grounds, this court's custody determination would properly be held in abeyance while Hague Convention proceedings were ongoing in the Federal Court. (Yang v Tsui, supra; see also Barzilay v Barzilay, supra.) Only if a Hague Convention proceeding were ongoing before this court would it be appropriate for the Federal court to abstain. (Barzilay v Barzilay, supra.) Thus, it follows that insofar as there is no Hague Convention proceeding before this court, the Federal action shall continue unimpeded, and this court, had it not dismissed this action on other grounds, would have held any determination of custody in abeyance.

A copy of this order has been faxed and/or mailed to the parties and/or their respective counsel.

Dated: July 23, 2009


Wednesday, May 4, 2011

Service of Process under Article 19 of the Hague Convention

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.

Sbarro, Inc., Plaintiff v. Tukdan Holdings, Ltd. a/k/a Takdan, Ltd. and Danny Werner, Defendant, 13016-10

Supreme Court, County of Suffolk, PART 44

Civil Practice

Justice Elizabeth H. Emerson

Decided: April 28, 2011

Upon the following papers numbered 1-17 read on this motion for default and cross motion to dismiss;

Notice of Motion and supporting papers 1-5;

Notice of Cross Motion and supporting papers 6-12;

Answering Affidavits and supporting papers 14-16;

Replying Affidavits and supporting papers; Other 17; it is,


ORDERED that the motion by the plaintiff for an order of default against the defendants and the branch of the cross motion by the defendants for a stay of this action are referred to oral argument, which shall be held on June 22, 2011 at 11:00 a.m., Supreme Court, Courtroom 7, Arthur M. Cromarty Criminal Court Building, 210 Center Drive, Riverhead, New York 11901 ; and it is further

ORDERED that the branch of the cross motion by the defendants to dismiss the complaint is denied.

The defendant Tukdan Holdings, Ltd. ("Tukdan"), is an Israeli corporation whose principal place of business is in Israel, and the defendant Danny Werner is an Israeli resident. The plaintiff, a New York corporation whose principal place of business is in Melville, New York, commenced this action against the defendants, Tukdan and Werner, by personally serving them in Israel in accordance with Israeli law and by mailing copies of the summons and complaint to them by registered mail in Israel. The defendants failed to answer the complaint or


otherwise appear. The plaintiff subsequently moved for an order of default against them, and the defendants cross moved, inter alia, to dismiss the complaint on the ground that they were not properly served pursuant to the Hague Convention. Specifically, the defendants argue that, pursuant to Israel's declarations and reservation to the Hague Convention, the only permissible method of service on the defendants was through Israel's Central Authority.

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No. 6638 [1969]) is a multilateral treaty designed to simplify the methods for serving process abroad to assure that defendants sued in foreign jurisdictions receive actual and timely notice of suit and to facilitate proof of service abroad (see, Fernandez v. Univan Leasing, 15 AD3d 343, 344 [2nd Dept]). Pursuant to the Hague Convention, the primary method of service is through the Central Authority established by each member state. The use of the Central Authority, however, is not mandatory (see, Canizio & Singh, Service of Process and the Hague Convention, NYLJ, Aug. 27, 2010). Article 19 of the Hague Convention permits service by any method permitted by the internal laws of the country in which service is being made (see, Fernandez v. Univan Leasing, supra at 344). Moreover, article 10 permits service of process by mail directly to the person abroad provided that the State of destination does not object in its ratification to such service (Id. at 344). Article 10 provides as follows:

Provided the State of destination does not object, the present Convention shall not interfere with —

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

It is undisputed that the State of Israel is a signatory to the Hague Convention and that it objected to paragraphs (b) and (c) of article 10.

At issue, then, is paragraph (a) and its use of the word "send" rather than the word "service," which is used in paragraphs (b) and (c). The First and Third Departments interpret the word "send" in article 10 (a) to authorize something other than "service" in the legal sense, such as the mere transmittal of notices and legal documents, and not the service of process that initiates a lawsuit and secures jurisdiction over an adversary party (see, Sardanis v. Sumitomo Corp., 279 AD2d 225, 229 [1st Dept]; Reynolds v. Woosup Koh, 109 AD2d 97, 99 [3rd Dept]).


That interpretation, however, has not been followed in the Second Department and is not binding on this court. The Second Department has followed the Fourth Department in interpreting the word "send" in article 10 (a) as synonymous with "service" and permitting service of process by registered mail when, as here, the State of destination has not objected to the use of postal channels under article 10 (a) (see, Fernandez v. Univan Leasing, 15 AD3d 343, 344-345 [2nd Dept]; Rissew v. Yamaha Motor Co., 129 AD2d 94, 97-98 [4th Dept]). Moreover, a Special Commission of the Hague Convention that met in 2003 considered the issue and concluded that the term "send" in article 10 (a) is to be understood as meaning "service" through postal channels (see, Canizio & Singh, Service of Process and the Hague Convention, NYLJ, Aug. 27, 2010). The U. S. State Department has, likewise, stated that it is incorrect to suggest that the Hague Convention prohibits as a method of service the sending of a copy of the summons and complaint by registered mail to a defendant in a foreign country (Id.).

Here, the defendants were personally served in accordance with Israeli law and copies of the summons and complaint were mailed to them by registered mail in Israel. The court finds that, under these circumstances, service was proper. Accordingly, the branch of the cross motion by the defendants which is to dismiss the complaint is denied.

The remaining issues are referred to oral argument. Only counsel fully familiar with and authorized to settle, stipulate, or dispose of this action shall appear at oral argument.


Tuesday, May 3, 2011

A Glimpse of Our Appellate Practice

Our appellate lawyers at AmedLaw have been involved in an unusual case involving a fraudulent conveyance of real property.  In this case, the buyer stole an identity, and purchased a home sold by a seller who also stole an identity.  The seller’s counterfeit identity was that of the owner’s late husband.  This scam involved nine players who have all been indicted, convicted, and/or sentenced by the Queens County District Attorney’s office.   The bank brought a foreclosure action against the innocent homeowner despite the fact that her home was fraudulently sold by forgery committed by a criminal third party.  AmedLaw represents the innocent homeowner and the victim of this fraud in the appellate court’s against the foreclosing bank, and the matter may soon reach resolution.  Common sense, in this debacle, raises the loudest voice to reinforce the uncomplicated notion that an innocent property owner may not lose ownership of their property as a consequence of criminal acts of unrelated third parties.  The New Post recently discussed this in an article printed on April 25, 2011.

Click Here to View Article

Thursday, April 21, 2011

NYT Article About a New York Birth Certificate and the Italian Inheritance Law

This is an intriguing article about an Italian woman who is seeking to change  her last name on her birth certificate in the New York County Supreme Court.   Doing so would entitle her under Italian law  to her natural father’s estate located in Italy. The article discusses the New York legal presumption that a child born to a married woman is the legal child of the woman’s  husband.




N.Y. / Region

New York Paternity Fight May Have Millions of Ripples


Published: April 15, 2011


Nina Viola Montepagani is fighting to erase the man listed as her father from her birth certificate. At stake: her identity, $50 million and legal precedent.

Tuesday, April 12, 2011


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



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.



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,


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.)


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-


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


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.


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


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.



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


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


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


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.


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.


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.


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


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,


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



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.


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.


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.


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




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