Commissioner of Social Services v. Stephen H.

— Order unanimously reversed, without costs, motion granted, and matter remitted to Erie County Family Court for further proceedings, in accordance with the following memorandum: Petitioner alleges that respondent Stephen H. is the father of a female child born out of wedlock to Laura N. In a sworn affidavit attached to the petition, Laura N., as complaining witness, says that she engaged in sexual intercourse with respondent on several occasions during the period of conception. A motion was made by petitioner to compel respondent to submit to a human leucocyte antigen (HLA) blood tissue test pursuant to section 532 of the Family Court Act. In denying the motion Family Court stated that, “If I order a fellow to take an HLA test, I am ordering him, in effect, to give evidence against himself.” Section 532 of the Family Court Act was amended (L 1981, ch 9, § 2, eff March 2,1981) to allow the results of the HLA test to be received in evidence to assist the court in the determination of whether the alleged father is or is not the father of the child. Although results of an HLA blood test are not conclusive, this test has been recognized as being highly accurate on the issue of paternity (Matter of Bowling v Coney, 91 AD2d 1195; Matter of Sherry K. v Carpenter, 90 AD2d 687, 688; see, also, Matter of Karen K. v Christopher D., 86 AD2d 633, 634). Upon motion of any party in a paternity proceeding, the court must order respondent putative father to submit to an HLA blood tissue test (Family Ct Act, § 532, subd [a]; see Matter ofKimiecik v Daryl E., 87 AD2d 284, 285). This is not violative of respondent’s privilege against self incrimination (see Schmerber v California, 384 US 757, 765; Matter of Linda K. L. v Robert S., 109 Mise 2d 628,630; Matter of Jane L. v Rodney B., 108 Mise 2d 709, 711-713). Family Court shall determine who should pay the cost of the test (cf. Matter ofRachelle L. v Bruce M., 89 AD2d 765). (Appeal from order of Erie County Family Court, Notaro, J. — HLA blood test.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.