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Decided on March 13, 2008
Sur Ct, New York County

1991-5547
Cornelius McDougal, New York City, for Brenda Frazier Mizell, petitioner.
Collin D. Bull, New York City, (Leah Hill of counsel) for Guinette Harrison, cross-petitioner.
Kristin Booth Glen, J.
In this petition and cross petition for letters of administration, petitioner Brenda Frazier Mizell, decedent's daughter, and cross-petitioner Guinette Harrison, decedent's alleged non-marital daughter, each seek letters of administration in the estate of Samuel Frazier. Ms. Mizell opposes the application by Ms. Harrison, contending that the proof adduced at a kinship hearing did not approach the threshold requirement for rebutting the presumption of legitimacy, which arose because Ms. Harrison's mother was married to another man at the time of her birth.
To qualify for letters of administration, Guinette must establish that she is among the class of persons entitled to serve as administrator of decedent's estate (SCPA 1001 [1]). To establish her status as his non-marital daughter, Guinette must present clear and convincing evidence that decedent was her father and must also establish that he openly and notoriously held her out as his own (EPTL 4-1.2[a][2][C]).
In meeting her evidentiary burden, Guinette must overcome a presumption that she is the biological child of the man whom her mother was married at the time of her birth (Matter of Fay, 44 NY2d 137, 142 [1978]). In other words, Guinette must prove that she is, in fact, a non-marital child.
While the presumption of legitimacy is a rebuttable one, it is also one of the most formidable presumptions the law employs. To overcome it, one must establish, by clear and convincing evidence, that the application of such presumption under the particular circumstances presented is entirely incompatible with "common sense and reason." (Id. at 142; see also Matter of Findlay, 253 NY 1, 8 [1930]). This clear and convincing standard of proof requires Guinette to offer evidence establishing that it is "highly probable" that her mother's husband is not her biological father (Matter of Poldrugovaz, 2008 NY Slip Op 1152, *7 [2d Dept, Feb 5, 2008]).
In the case at hand, the proof adduced by Guinette does not meet this standard. At a hearing before a court attorney-referee, the proof established that in 1949, Guinette's mother, Geraldine Harrison nee Meyers, married Howard Harrison; she gave birth to Guinette in 1964. Mrs. Harrison testified that while her husband maintained a residence in New Jersey where he worked, she was not legally separated from him and they remained married and living together [*2]from the date of their marriage until his death in 1991. However, when asked on direct examination to identify Guinette's father, Mrs. Harrison named the decedent. Furthermore, it was established at the hearing that decedent openly and notoriously acknowledged such paternity. The decedent's sisters and his best friend each testified that decedent held Guinete out as his daughter to his family and friends in the community.
Nevertheless, it is well settled that this fact alone does not rebut the presumption of legitimacy. Anticipating that such a man may be mistaken in proclaiming paternity, the law requires more: it requires clear and convincing evidence that the man is, in fact, the biological father of the child (See Matter of Rhodes, 5/20/93, col 1 [Sur Ct, NY County 1993]). Where facts show only that a child's biological mother has engaged in an adulterous relationship, and no additional finding can be made excluding her husband as the biological father by establishing, for example, that the spouses did not have access to one another during the period of conception courts have consistently concluded that the presumption of legitimacy has not been successfully overcome.[FN1] (See e.g., Matter of Irma v Carlos, 46 AD2d 893 [2d Dept 1974]); Matter of Gray v Rose, 32 AD2d 994 [3d Dept 1994]; Matter of Rhodes, NYLJ 5/20/93, col 1 [Sur Ct, NY County].
At the conclusion of the hearing, decision was reserved and the parties were permitted to submit post-trial memoranda in further support of their respective positions. However, there is nothing in the record, as supplemented, that supports a finding that the spouses did not have access to one another, nor is there any other basis for concluding that application of the presumption of legitimacy would offend common sense and reason.
Consequently, this Court finds that the proof adduced by Guinette does not establish by clear and convincing evidence that decedent was her father. Thus, the requirements of EPTL 4-1.2 have not been met and the presumption of legitimacy has not been overcome.
Accordingly, Guinette's cross petition for letters of administration to decedent's estate is denied. The petition of Brenda Frazier Mizell is granted. The Clerk of the Court is directed to mail a copy of this decision to all the parties who have appeared in this proceeding.
Settle decree.
[*3]Dated: March, 2008______________________
SURROGATE

Footnotes
Footnote 1: Courts have universally accepted as proof sufficient to rebut the presumption of legitimacy the fact that the spouses did not have "access" to one another for the purpose of conjugal relations at or around the time of conception. See, e.g., Matter of Findlay, 253 NY 1 [1930]); Matter of Joan G. v. Robert W., 83 AD2d 838 [2d Dept 1981]); Nass v Nass, 64 AD2d 852 [4th Dept 1978]); Schnectady County Dept. of Social Servs. v Hilvan, 57 AD2d 688[3d Dept 1977]; Matter of Hutchins, NYLJ, 10/7/04, col 5 [Sur Ct, Kings County 2004).
With advancements in science, New York courts have more recently found the presumption to have been overcome by genetic testing conclusively establishing that the husband is not the biological father (Baby Girl S, 140 Misc 2d 299 [Sur Ct, NY County 1988]); Matter of Ludwig, NYLJ, 1/18/96, col 3 [Sur Ct, NY County 1996]; aff'd 239 AD2d 122 [1st Dept 1997]). Courts might also find the presumption to have been rebutted by proof, for example, that a husband was physically incapable of fathering any child. See Matter of Gorton, 123 Misc 2d 1034 [Fam Ct, Oneida County
1984]).

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