Jackson v. Ricks

— Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Petitioner failed to meet his burden of establishing paternity by " 'clear and convincing’ evidence, evidence which is 'entirely satisfactory’ and creates a genuine belief that [petitioner] is the father of the child” (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141-142). HLA blood tests were administered by the two expert witnesses, Dr. James Mohn and Dr. Nancy Cunningham. The HLA blood test is highly accurate on the issue of paternity and is entitled to great weight (Swann v Schoenfield, 163 AD2d 850, 851, lv dismissed sub nom. Nicholas S. v Schoenfield, 76 NY2d 889; Matter of Niagara County Dept. of Social Servs. v Sanders, 156 AD2d 939, 940). The tests showed the probability of petitioner’s paternity to be 89.96%, which Dr. Mohn characterized as "borderline.” Based upon his analysis of the HLA test results, Dr. Mohn concluded that it is "quite unlikely” that petitioner is the child’s father. Similarly, Dr. Cunningham testified that petitioner is probably not the father of the child. 1033 The HLA tests results, considered in light of all the evidence (see, Matter of Denise H. v John C., 130 AD2d 748; Matter of Julie UU. v Joseph VV., 108 AD2d 1038, 1039), warrant dismissal of the petition. In addition to the expert testimony, the record contains credible evidence that the mother engaged in sexual relations with several men at the time of conception. Coupled with the very low probability HLA test results, proof that the mother had intercourse with men other than petitioner during the critical period compels the conclusion that petitioner failed to establish paternity by clear and convincing evidence (see, Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996). (Appeal from Order of Erie County Family Court, Trost, J.H.O. — Paternity.) Present — Boomer, J. P., Green, Balio, Fallon and Davis, JJ.