Department of Social Services ex rel. Debra L. v. William J.

—In a proceeding pursuant to Family Court Act article 5 to establish paternity, the petitioner Department of Social Services of Suffolk County appeals from an order of the Family Court, Suffolk County (Hall, J.), entered February 21, 1990, which, after a hearing, dismissed the petition.

Ordered that the order is reversed, on the facts, without costs or disbursements, the petition is granted, and the respondent is declared the father of the subject child.

The petitioner contends that the court erred in dismissing the petition on the basis that it had not proved, by clear and convincing evidence, the critical issue of sexual access by the respondent during the relevant period of conception. The petitioner argues that dismissal was not warranted since the human leucocyte antigen (hereinafter HLA) test showed a probability of paternity of 96.86%, and the deoxyribonucleic acid (hereinafter DNA) test showed a probability of paternity of 99%. We agree. In view of certain other evidence adduced at the hearing conducted by the Family Court, these test results render the respondent’s denial of sexual intercourse incredible, and we therefore reverse.

The results of the HLA test are not conclusive on the issue of paternity (see, e.g., Matter of Denise H. v John C., 135 AD2d 816; Matter of Terri OO. v Michael QQ., 132 AD2d 812; Matter of Moon v Mark A., 109 AD2d 1017). Here, however, a DNA test was also performed. According to the expert testimony given at the hearing, the combined indices resulted in a value of 2,984,773 to 1, or 99.99+%, in favor of the respondent’s paternity, the sort of figures one court has called "staggering” (Matter of Baby Girl S., 140 Misc 2d 299, 305). While all tests probative of paternity are to be used only "to aid in the determination” of paternity (Family Ct Act § 532 [a]), even where they are used in combination, there is enough in the record as a whole to conclude that the petitioner has met its burden of proving the respondent’s paternity by "clear and convincing proof’ (Matter of Jane PP. v Paul QQ., 65 NY2d 994).

In addition to the mother’s testimony regarding sexual intercourse with the respondent during July 1985, when conception occurred, the respondent himself admitted an act of fellatio with the mother a few months earlier at a 1984 New Year’s Eve party. Further, the mother’s stepmother testified that the respondent was a frequent visitor at their home during the summer of 1985, indicating physical access during the relevant period after the mother and the respondent already had experienced sexual intimacy. The respondent denied having had sexual intercourse with the mother, then or ever. He also denied visiting the mother at home. Nevertheless, he admitted being around the house often because of his friendship with neighbors and the mother’s brother.

The Family Court rejected the mother’s claim of sexual intercourse, citing her demeanor and discrepancies in her testimony. It found the respondent to be candid and credible, and implicitly accepted all of his essential denials. However, in view of his prior sexual contact with the mother and his physical access to her in July 1985, the unchallenged and overwhelming proof of paternity contained in the HLA and DNA test results cause his denials to pale to the point of transparency and simply are not credible. The respondent should not be able to rely solely on a courtroom performance which consists of nothing more than bald denials to defeat objective scientific proof which has identified him as the father to a virtual certainty (see, King v Tanner, 144 Misc 2d 1073, 1077-1078; Matter of Baby Girl S., supra). We therefore conclude that dismissal of the petition was error and that the relief sought therein should have been granted. O’Brien, Copertino and Santucci, JJ., concur.