Anonymous v. Anonymous , 151 A.D.2d 330 ( 1989 )

Order of the Supreme Court, New York County (Jacqueline Silbermann, J.), entered on or about June 9, 1988, which, inter alia, awarded defendant wife interim child support and held that plaintiff husband was estopped from asserting Domestic Relations Law § 73 to contest paternity, unanimously modified, on the law and the facts, to the extent of vacating the estoppel to assert Domestic Relations Law § 73, and otherwise affirmed, without costs.

Under the circumstances of this case, we are of the opinion that the plaintiff-appellant husband should be afforded the opportunity to contest the allegation of paternity of the son born to his wife during their marriage allegedly as a result of artificial insemination, and to invoke the protection of Domestic Relations Law § 73. The IAS court, on the defendant-respondent wife’s motion for maintenance, child support and counsel fees, pendente lite, held that the husband was es-topped from asserting Domestic Relations Law § 73 to deny paternity, despite the fact that the requirements of that section were apparently not satisfied. The court relied on certain actions and declarations of the plaintiff husband to hold him estopped to assert the protection of that section. In our view, the question of estoppel to assert the protection of that statute should not ordinarily be determined on a motion for pendente lite child support and maintenance. Concur— Murphy, P. J., Kupferman, Carro, Ellerin and Wallach, JJ.