Murphy v. Murphy

Order unanimously reversed, without costs, and motion granted. Memorandum: In plaintiff’s action for an annulment or in the alternative for a divorce, Special Term improperly denied plaintiff’s motion for an order compelling defendant and her infant child to submit to blood tests pursuant to CPLR 3121 (subd [a]). The cause of action for annulment was based upon allegedly false representations made by defendant that plaintiff was the father of the child. Defendant’s answer contains a denial of such allegations and puts the paternity of the child in issue. Inasmuch as the motion was made "After commencement of an action in which * * * the blood relationship of a party or of [a] person in the custody or under the legal control of a party, is in controversy”, plaintiff was entitled to the order as a matter of right. (CPLR 3121, subd [a]; Vargas v Vargas, 54 AD2d 590.) (Appeal from order of Erie Supreme Court—blood tests.) Present—Marsh, P. J., Moule, Simons, Dillon and Hancock, Jr., JJ.