In re the Estate of Cipriani

Decree, Surrogate’s Court, Bronx County (Lee Bolzman, S.), entered November 20, 2001, which, inter alia, granted petitioner’s motion for summary judgment to the 264 extent of determining that petitioner is the daughter and sole distributee of decedent Ralph Cipriani, revoked letters of administration issued to respondent Gary Cipriani, directed respondent Cipriani to account, and granted petitioner letters of administration, with related relief, unanimously affirmed, with costs. Although the statutory presumption of legitimacy (see Domestic Relations Law § 24 [1]) does not apply in the absence of proof that the child was born of both parents (see Matter of Thomas S. v Robin Y., 209 AD2d 298, 305, appeal dismissed 86 NY2d 779), such proof is found in the instant record in decedent’s 1963 admission of paternity in a duly filed and accepted application to amend petitioner’s birth certificate. While inquiry into the circumstances of such an admission may sometimes be warranted (see Matter of Cheryl B. v Alfred W.D., 99 Misc 2d 1085, 1088), no such inquiry is needed herein. If appellants’ version of the facts is accepted, decedent gratuitously acknowledged that petitioner was his own biological daughter. He was not under compulsion to do so (cf Hansom v Hansom, 75 Mise 2d 3, 7) and had nothing to gain by doing so, other than the satisfaction of a sincere desire to legitimize petitioner’s birth. The Surrogate therefore properly regarded this admission as clear and convincing evidence that petitioner is decedent’s daughter, and did not improperly make credibility determinations on the motion and cross motion for summary judgment (cf. Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 81). Appellants’ defense of laches is without merit (compare Matter of Cortland County Dept. of Social Servs. v Thomas ZZ., 141 AD2d 119, 122, with Matter of Lorie F. v Raymond F., 239 AD2d 659). Concur — Tom, J.P., Ellerin, Lerner, Rubin and Gonzalez, JJ.