Winkler v. Sherman

Winkler v Sherman (2016 NY Slip Op 02142)

Winkler v Sherman

2016 NY Slip Op 02142

Decided on March 24, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 24, 2016
Tom, J.P., Friedman, Saxe, Richter, JJ.

101428/13 581 580

[*1]Richard E. Winkler, Plaintiff-Appellant,

v

Joe Sherman, also known as Joeseph Daniel Sherman, also known as Joseph Sherman, Defendant-Respondent, New York State Legislature, Defendant.

Richard E. Winkler, appellant pro se.

Melito & Adolfsen P.C., New York (Dawn Mikulastik Gagliardi of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 19, 2014, which granted defendant Sherman's motion to dismiss the complaint for failure to state a claim, and order, same court (Robert D. Kalish, J.), entered May 29, 2015, which, to the extent appealable, denied plaintiff's motion to renew, unanimously affirmed, without costs.

A statute is presumed constitutional and that presumption can only be overcome by proof persuasive beyond a reasonable doubt (Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358, 370 [1978]; Local Govt. Assistance Corp v Sales Tax Asset Receivable Corp., 2 NY3d 524, 535 [2004]). The court properly determined that plaintiff failed to demonstrate that Family Court Act § 517 was unconstitutional to the extent that it placed a limitation on the time when a child could seek a paternity test, given the state's legitimate interest in securing support for a child from those legally responsible. The limitations period is not arbitrary and capricious in that by age 21, a parent may not be legally responsible for support. Moreover, plaintiff, well over 21 years of age, was not seeking support from defendant.

Plaintiff also failed to provide binding legal authority for his claim that he had a constitutional right to know the identity of his biological father, given the strong presumption that his mother's husband, who was listed on his birth certificate, is his father.

The court properly denied plaintiff's motion to renew the December 19, 2014 decision in that plaintiff failed to present new facts not offered on the prior motion that would change the prior determination (Pullman v Silverman, 125 AD3d 562, 563 [1st Dept 2015]; see Drillings v [*2]Beth Israel Med. Ctr., 200 AD2d 381 [1st Dept 1994]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2016

CLERK