114 Misc. 2d 800 | N.Y. Fam. Ct. | 1981
OPINION OF THE COURT
On September 2, 1981, respondent moved to vacate and set aside an order, entered by the court on June 2, 1981, directing that the parties to this paternity proceeding, and the children whose paternity is in dispute, submit to a human leucocyte antigen blood tissue test (hereinafter H.L.A. test). Although counsel for respondent conceded the court’s legal authority, pursuant to section 532 of the Family Court Act, to order such test, he contended that the H.L.A. test, if compelled, would conflict with the provisions of section 531 of the act, as construed and applied by the Court of Appeals. For the reasons set forth below, respondent’s motion is denied in all respects.
Section 532 of the Family Court Act, as amended, provides as follows: “The court, on motion of any party, shall advise the parties of their right to a blood test and shall order the mother, her child and the alleged father to submit to one or more blood grouping tests by a duly
In support of his contention, respondent relies principally upon Matter of Margaret B. v Gilbert W. (41 NY2d 971), in which the New York Court of Appeals reversed, on the dissenting opinion of Mr. Justice Louis J. Capozzoli at the Appellate Division,
The instant case is clearly distinguishable from Matter of Margaret B. v Gilbert W. (supra), which involved the application in paternity actions of the pretrial discovery provisions of the CPLR in light of the privilege created by section 531 of the Family Court Act. In the case at bar, by contrast, what is at issue is an alleged violation of respondent’s rights under section 531 of the act, as construed and applied by the Court of Appeals in Matter of Margaret B., if section 532 is held to compel respondent to submit to an H.L.A. test, the results of which would be admissible at trial to establish paternity.
The conflict between the two provisions of the Family Court Act is, however, more apparent than real. Initially, it must be noted that when the Legislature amended section 532 in 1981, it presumably was aware of the privilege created by section 531, as well as the Court of Appeals decision construing and applying the earlier enactment. The clear implication from this is that the Legislature viewed the amendment to section 532 either as creating an exception to the privilege that had previously been created by section 531, or, more probably, as falling completely outside the scope of the prohibition against testimonial compulsion that is contained in section 531.
That the respondent’s privilege not to be compelled to testify is not violated, or even implicated, when he is ordered by the court, pursuant to section 532, to submit to the H.L.A. test appears clear from the case law relating to compulsory blood tests that has developed in the context of criminal proceedings. The United States Supreme Court in Schmerber v California (384 US 757), held that an accused’s privilege against self incrimination under the Fifth and Fourteenth Amendments was not implicated where he was subjected involuntarily to a blood test to determine if
Since a defendant in a criminal case can be compelled to submit to a blood test without violation of his Fifth Amendment privilege against self incrimination, it is clear that a respondent in a paternity action, which is now recognized to be a civil proceeding, can also constitutionally be compelled to submit to blood tests, including the highly probative H.L.A. test. (Matter of Linda K. L. v Robert S., 109 Misc 2d 628; Matter of Carmen I. v Robert K., 110 Misc 2d 310; Matter of Jane L. v Rodney B., 108 Misc 2d 709, 713, n 6.) Moreover, it follows from the foregoing principles that respondent’s statutory privilege against self incrimination, embodied in section 531 of the Family Court Act, is in no way violated, or even implicated, when respondent is ordered by the court to submit to the H.L.A. test since the test, unlike the pretrial discovery procedures at issue in Matter of Margaret B. v Gilbert W. (supra), is not testimonial in nature.
. In the alternative, respondent sought an order relieving him from submitting to the H.L.A. test.
. The italicized portion of the above-quoted statutory provision was added by L 1981, ch 9.
. 51 AD2d 456, 461-462 (dissenting opn).
. CPLR 3101 (“Scope of Disclosure”), in pertinent part, provides as follows: “(b) Privileged matter: Upon objection of a party privileged matter shall not be obtainable.”
. Matter of Margaret B. v Gilbert W., 51 AD2d, at p 461 (dissenting opn; citations omitted).
. In his supplemental memorandum, counsel for respondent also argued that no adverse inference or presumption should flow from respondent’s refusal to submit to the test, and, in support of this argument, referred to the recent decision in Moon v Crawson (109 Misc 2d 902). The Moon case is, however, not on point since there, respondent refused an offer, rather than an order, to submit to the H.L.A. test, and no motion to compel such testing was made prior to the hearing. In any event, it would be improper for this court to render what, at this stage of the proceedings, would be an advisory opinion as to the legal consequences — evidentiary or otherwise — that might follow should respondent fail to comply with the court’s order.