Nancy M. G. v. James M.

Balletta, J.,

dissents and votes to affirm the order appealed from with the following memorandum: The majority has agreed with the petitioner’s contention that there was sufficient evidence in the record to satisfy her burden of proof of showing that the respondent was the father of the infant, and further, that the Family Court did not give sufficient weight to the human leucocyte antigen (HLA) test. I respectfully disagree, and vote to affirm the Family Court order dismissing the petition.

While it is true that the results of the HLA test are highly probative, they are not conclusive (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). Such test results are only one item of evidence among many which the trier of facts has at its disposal to aid in its determination, and the results need only be given such weight as the trier of fact deems appropriate (see, Matter of Department of Social Servs. v Thomas J. S., 100 AD2d 119).

The petitioner acknowledged that she had sexual relations with her former fiancé, William D., in January 1985, although it is not clear when in January that contact occurred. Further, she originally had thought that the man she lived with during the period of her pregnancy, William G., was the father of her child but later changed her mind only after a sonogram placed the date of conception in early February. She acknowledged having met William G. on a blind date, on the day prior to meeting the respondent, but denied having had any sexual contact with him at that time.

As mentioned above, a sonogram taken in June placed the date of her conception in early February. As a matter of fact, the respondent’s medical expert estimated the date of conception to be February 3, 1985, after having reviewed the petitioner’s hospital records, the petitioner’s ultrasonography re*718cords, and the records of her treating physician. More importantly, his opinion was not challenged and no questions were asked about the reliability of his date of conception estimate or the margin of error with respect to such estimates. Although the petitioner conceived, according to the "uncontroverted testimony of respondent’s expert,, on February 3, 1985, which estimate is further corroborated by the results of the independent sonogram, she did not meet the respondent until approximately February 22, 1985 (19 days later), with sexual intercourse occurring later that evening.

A second expert also testified for the respondent to the effect that the HLA test result of 98.72% was greatly excessive and that a more probable result would have been 84%. While it is true that he held a minority view about how HLA testing should be analyzed, his testimony was nevertheless before the court and could be considered, together with all of the other testimony. The petitioner herein failed to present any expert rebuttal testimony to contradict this testimony (cf., Tamara B. v Pete F., 146 AD2d 487).

In the light of the unrefuted testimony presented by the respondent that conception occurred more than two weeks before the parties met, considered together with all of the other evidence in the case, in my view the Family Court could properly find the HLA test results inconclusive, and the Family Court’s conclusion that the petitioner failed to meet the required burden should not be disturbed (see, Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141-142). "The fact that the result of a human leucocyte antigen test * * * revealed a probability of petitioner’s paternity of 98.6% does not detract from [the] Family Court’s determination” (Matter of David CC. v Rose GG., 142 AD2d 797; see also, Matter of Pandozy v Perry X., 141 AD2d 894).