Tamara B. v. Pete F.

— Order of the Family Court, New York County (Ruth Jane Zuckerman, J.), entered May 20, 1991, which dismissed petitioner-appellant’s paternity petition, affirmed, without costs.

On a prior appeal (Tamara B. v Pete F., 146 AD2d 487, amended 157 AD2d 636), this court reversed an order denying the paternity petition and remanded the matter to reopen the trial for the purpose of receiving testimony of petitioner’s expert witness in rebuttal to testimony presented by respondent’s expert. On remand, Family Court ruled that the rebuttal testimony did not dispel the questions raised by respondent’s expert witness with respect to the probability, as indicated by red blood cell and human leucocyte antigen (HLA) tests, that respondent was the father of petitioner’s child. The court therefore adhered to its original determination.

The expert witnesses disagreed on the probability of paternity indicated by test results which detect the presence of a pair of genes, or haplotype, common to the child and the putative father but absent in the mother. The results are compared with a table which reflects the frequency of the particular haplotype in the pertinent ethnic group (white, black, hispanic or oriental) and therefore the probability that the detected haplotype may have been contributed by a male other than respondent.

Comparing the results with a table for white males in the general New York City population, petitioner’s expert derived a probability of 719-to-one that respondent is the father of petitioner’s child. Respondent’s expert witness, however, stated that, when adjusted for haplotype uncertainty (see, Matter of Commissioner of Social Servs. of City of N. Y. v Louis T., 126 Misc 2d 731, 735-738), the odds are 57-to-one, not 719-to-one. Furthermore, the frequency of the haplotype in a group of males having a similar ethnic background to the putative father is significantly greater. For example, if respondent is compared with a group of Ashkenazi Jews, the greater frequency of the haplotype in that population yields a probability that respondent is the father of only 5-to-one. At trial, testimony was received from two Greek males that each had sexual relations with petitioner during the relevant time interval (respondent is also Greek), and other testimony suggested that a friend of petitioner, an Ashkenazi Jew, may have been a paramour.

It should be emphasized that the HLA test is not conclusive (Tamara B. v Pete F., supra, at 489) but yields only a probability. To a person struck by lightning, statistical improbability is scant comfort. In any event, the weight to be accorded to the opinion testimony given by petitioner’s expert witness is within the province of the trier of fact, to be assessed together with other credible evidence (Matter of Sylvestri, 44 NY2d 260, 266) and need not be credited even when uncontroverted by conflicting testimony (Commercial Cas. Ins. Co. v Roman, 269 NY 451, 456-457). "The trier of fact is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination of the expert witness” (Herring v Hayes, 135 AD2d 684). Family Court properly considered the testimony given by all of the witnesses together with the documentary evidence in reaching its decision. Concur—Murphy, P. J., Carro and Rubin, JJ.