In this accounting proceeding by the Public Administrator of Queens County, objectant, Lancelot Nelson, seeks an order rejecting the Referee’s Report dated July 19, 2024, which made findings of fact and conclusions of law on the issue of kinship (SCPA §506 [6]). SCPA 506[6[a] provides that “the court may confirm, modify, or reject the report in whole or in part, may make new findings without taking additional testimony or may order a new hearing.” As background, the decedent died intestate on May 14, 2020 a resident of Queens County. Letters of administration were issued to the Public Administrator on February 9, 2021. Objections to the Public Administrator’s accounting were filed by 14 individuals all claiming to be distributees of the decedent. The court referred this matter to a Court Attorney/Referee to hear and report on the issue of kinship. The Referee conducted a trial and issued a report on July 19, 2024 finding that decedent was survived by one sister, Ethle Seow, and thirteen nieces and nephews. Accordingly, the Public Administrator of Queens County was to distribute one-half of the decedent’s net estate to the sister, and the other one-half was to be divided in equal shares among the decedent’s nieces and nephews. The decedent’s nephew, Lancelot Nelson, moves to reject the report, claiming that the referee’s finding that Delceta West was a niece of the decedent was based on inadequate and self-serving evidence. As a preliminary matter, the motion to reject the referee’s report was not timely filed within ten days after service of the report on July 19, 2024 (SCPA §506 [6][a]). The movant incorrectly cites to SCPA 506.4, which provides a party 60 days after the filing of the report to move to confirm or reject the report. The statute applicable to court attorney referees, however, is SCPA 506[6][a] (“the report shall be deemed confirmed as of course unless within ten days from the date of mailing the report any party shall file with the court, a notice of motion to modify or overrule the report.”). Consequently, the motion may be denied on this basis alone. The objectant’s’ failure to timely request that the Referee’s Report be rejected, however, does not mandate the denial of the relief sought as the court, independently, has the right to modify or reject a Referee’s Report (SCPA §506 [6][a]). But on the record before it, this court finds no basis to do so. Objectant argues that documents admitted into evidence with respect to Delceta West were neither competent nor credible to establish that she was the child of decedent’s brother, Kenneth Nelson. The evidence considered by the referee consisted of a DNA testing report from DNA Diagnostics Center with a business record certification and chain of custody documentation that established that Delceta West and Yvette Marcia Nelson — whose status is undisputed — shared a parent and were thus half-siblings; a birth certificate of Delceta; a birth certificate for Yvette; an affidavit from Delceta’s mother that explained why she did not identify Kenneth Nelson as Delceta’s biological father on the birth certificate; and an affidavit from Kenneth Nelson’s other daughter, Ann Marie Nelson, that swore against her pecuniary interests that Kenneth Nelson openly and notoriously acknowledged Delceta as his daughter. It bears noting that parentage cannot be established solely by virtue of submitting a birth certificate bearing the name of the father. The statutory declaration as to the evidentiary effect of such certificates as set forth in the Public Health Law 4103[3] is not applicable to private controversies (see Beglin v. Metropolitan Life Ins. Co., 173 NY 374 [1903]; Matter of Billings’ Estate, 196 Misc 141 [Sur Ct, Saratoga County 1949]; Estate of Meyer, 206 Misc 368 [Sur Ct, New York County 1954]). In kinship proceedings, a birth certificate is proof of birth, not parentage (Hughes-Reddick v. Hughes, 2017 NY Misc Lexis 2326 [Sup Ct, Kings County 2017]). Consequently, the movant’s argument that the Referee “abrogated” a Jamaican Governmental document and substituted an individual not listed on the birth certificate as the father is of no moment. As applicable herein, the law provides that a non-marital child is the legitimate child of his father…so that he and his issue inherit from such parent and such parent’s kindred if [C] parentage has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the parent openly and notoriously acknowledged the child as his or her own. EPTL 4-1.2(a)[2][C](ii). Here, the Referee could have simply relied upon the genetic marker test to justify his finding. Hence, even if the court were inclined to ignore the evidence complained of by the movant, the genetic marker test establishing the biological relationship shared between Delceta and Yvette is sufficient. Upon review of the court record and the papers submitted at trial, the court finds that the Referee properly considered the documents and evidence admitted into evidence. The court further finds that the Referee did not misapprehend the pertinent facts or misapply the relevant law and that the Referee’s determination is substantially supported by the record, and consistent with, the evidence adduced (see Matter of Cincotta, 139 AD3d 1058, 1059 [2d Dept. 2016]; Hudson v. Smith, 127 AD3d 816 [2nd Dept 2015]; Matter of Rosenblatt (Solomon), 71 Misc 3d 1224[A]). Accordingly, there is no basis in fact or law to reject the Referee Report. The motion is denied. This is the decision and order of the court Settle Decree. Dated: October 1, 2024
