Montepagani v. New York City Department of Health

Jun 9, 2011
Versions:85 A.D.3d 474
924 N.Y.S.2d 784

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered January 7, 2011, which, upon granting petitioner‘s motion to renew, adhered to its prior order (same court and Justice), entered August 30, 2010, which denied the petition and dismissed the proceeding, unanimously affirmed, without costs.

We find that the IAS court properly denied the petition both in its original order and upon renewal. As a preliminary matter, because petitioner‘s proofs failed to raise any issue of material fact, the proceeding was properly determined without a hearing (see Matter of Battaglia v Schuler, 60 AD2d 759 [1977]). There was no quasi-judicial hearing before respondent agency. Thus, the IAS court was correct in refusing to refer the proceeding to this court pursuant to CPLR 7804 (g). Moreover, contrary to petitioner‘s assertion, the IAS court appropriately required that petitioner rebut the presumption of legitimacy by clear and convincing evidence in order to have her ostensible father‘s name removed from her birth certificate (see Murtagh v Murtagh, 217 AD2d 538 [1995]).

We have considered the remaining arguments and find them to be without merit. Concur—Gonzalez, P.J., Tom, Friedman, Catterson and Richter, JJ. [Prior Case History: 30 Misc 3d 1206(A), 2011 NY Slip Op 50002(U).]