| Montepagani v New York City Dept. of Health, Div. of Vital Records |
| 2011 NY Slip Op 04819 [85 AD3d 474] |
| June 9, 2011 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Nina Viola Montepagani, Formerly Known as Sebastiana Viola
Montepagani, Appellant, v New York City Department of Health, Division of Vital Records, Respondent. |
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Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), for
respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered January 7, 2011, which, upon granting petitioner's motion to renew, adhered to its prior order (same court and Justice), entered August 30, 2010, which denied the petition and dismissed the proceeding, unanimously affirmed, without costs.
We find that the IAS court property denied the petition both in its original order and upon renewal. As a preliminary matter, because petitioner's proofs failed to raise any issue of material fact, the proceeding was properly determined without a hearing (see Matter of Battaglia v Schuler, 60 AD2d 759 [1977]). There was no quasi-judicial hearing before respondent agency. Thus, the IAS court was correct in refusing to refer the proceeding to this court pursuant to CPLR 7804 (g). Moreover, contrary to petitioner's assertion, the IAS court appropriately required that petitioner rebut the presumption of legitimacy by clear and convincing evidence in order to have her ostensible father's name removed from her birth certificate (see Murtagh v Murtagh, 217 AD2d 538 [1995]).
We have considered the remaining arguments and find them to be without merit. Concur—Gonzalez, P.J., Tom, Friedman, Catterson and Richter, JJ. [Prior Case History: 30 Misc 3d 1206(A), 2011 NY Slip Op 50002(U).]