I disagree with the majority’s conclusion that defendant’s request for blood-grouping tests did not have to be accompanied by any factual showing to support his conclusory denial of paternity of the child born during the parties’ marriage. Accordingly, I respectfully dissent.
My disagreement with the majority is twofold. Family Court Act § 418 (a) applies to support proceedings in Family Court. Defendant’s request was made in a divorce action in Supreme Court and, therefore, the request is governed by CPLR 3121 (a), which gives the court discretionary authority to order a blood-grouping test in any action in which the blood relationship of a party is in controversy (see, Murtagh v Murtagh, 217 AD2d 538, 539; Vito L. v Filomena L., 172 AD2d 648, 650). The controversy must, however, be genuine (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3121:6, at 658). The party seeking a CPLR 3121 (a) examination bears the burden of demonstrating a genuine controversy by affidavits which contain evidentiary matter and not mere conclusory statements (see, Koump v Smith, 25 NY2d 287, 300).
Defendant’s conclusory allegation, made upon information and belief, that he is not the father of the child conceived and born during the marriage is, in my view, patently insufficient to establish that defendant’s blood relationship with the child is genuinely in controversy. There is no evidentiary matter in the record to support defendant’s claim, which is pure speculation. Assuming that plaintiffs involvement in an extramarital affair at the time of conception would be sufficient to demonstrate a genuine controversy about the child’s paternity, defendant submitted nothing to support his suspicion that his wife might have had an extramarital affair, which is the basis of his request for the test. That plaintiff had frequent telephone conversations with another man may have been enough to make this particular defendant suspicious, but I find it insufficient to justify the requested blood-grouping test. It is clear from the record that defendant’s request can be viewed as a "fishing expedition” prompted by defendant’s claim that he is "not now convinced” that he is the father of the child born during the parties’ marriage. Accordingly, Supreme Court correctly denied defendant’s request and the orders appealed from should be affirmed.
*292I would reach the same conclusion if the provisions of Family Court Act § 418 (a) were applicable to this Supreme Court action. The mandatory provisions of the statute come into play only "when paternity is contested” (Family Ct Act § 418 [a]). It is my view that the term "contested” in Family Court Act § 418 (a) should be accorded the same meaning as the CPLR 3121 (a) phrase "in controversy” (see, Kimberly A. v Vincent A., 156 Misc 2d 971, 973-974) and, therefore, defendant’s request was properly denied because he failed to demonstrate a genuine controversy or contest about the child’s paternity. There is no basis to conclude that the Legislature intended to create entirely different standards for blood-grouping tests under CPLR 3121 (a) and Family Court Act § 418 (a).
Nor is the majority’s position bolstered by the addition of a requirement that the party seeking the blood-grouping test demonstrate a "nonfrivolous controversy”. The amorphous concept created by the majority is apparently considerably less exacting than the clear and unequivocal standard articulated by the Court of Appeals in Koump v Smith (25 NY2d 287, 300, supra) which imposes only a modest burden. In contrast to the requirement of affidavits which contain evidentiary matter and not mere conclusory statements (see, supra, at 300), the majority requires no factual showing to demonstrate a "non-frivolous controversy”. In short, the majority has effectively adopted the "mere suspicion” standard, which Family Court correctly rejected in Kimberly A. v Vincent A. (supra, at 974). The party seeking a blood-grouping test need not rebut the presumption of legitimacy that arises when a child is born during the marriage, but I cannot agree with the majority that defendant met his burden by claiming that he is no longer convinced he is the father of the child, supported only by conclusory statements about his suspicion that his wife might have had an extramarital affair. The allegations cited by the majority are equivocal at best on the issue of the extramarital affair and have no direct bearing on the paternity issue. It may well be that defendant is sincerely suspicious about the child’s paternity, which is sufficient to satisfy the majority. It is my view, however, that inasmuch as the Legislature has not seen fit to make the results of blood-grouping tests conclusive of the issue of paternity, there is no justification for not requiring defendant to meet an objective standard, which calls for evidentiary matter and not conclusory statements to demonstrate that paternity is genuinely contested or in controversy.
Mikoll, J. P., Crew III and Spain, JJ., concur with Yesawich Jr., J.; Casey, J., dissents in a separate opinion.
*293Ordered that the orders are reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.