Must U.S. Hospital Turn Over DNA of the Late Saudi Crown Prince, so Plaintiff Can Use It in Lebanese Paternity Action?

As usual, the answer is ... procedure, more procedure, and procedure about procedure.

From Al Saud v. New York & Presbyterian Hosp., decided by Judge Nancy M. Bannon on June 22 but just posted on Westlaw:

[T]he petitioner, Talal Bin Sultan Bin Abdul-Aziz Al Saud, who is now 35 years old, alleges that he is the son of Sultan bin Abdul-Aziz Al Saud (the decedent), who was Crown Prince of Saudi Arabia when he died in October 2011 at the New York Presbyterian hospital (NYPH). The decedent underwent surgery at NYPH, during which his tissue and blood samples were preserved pursuant to the business practices of NYPH. NYPH is the only source known to the petitioner having readily available tissue samples of the decedent. The petitioner seeks to test the tissue samples from NYPH in a U.S.-based DNA test to be used as evidence in a paternity action in Lebanon.

By the order dated June 15, 2018, the court denied the petition because no paternity proceeding had yet been commenced and no other action was pending in another jurisdiction and, as such, the petitioner failed to properly submit proof of his entitlement to pre-action disclosure pursuant to CPLR 3102(e). The petitioner appealed. Meanwhile, the petitioner also moved to renew and reargue, after he filed a filiation action in Lebanon. In support of that motion, the petitioner submitted proof and new evidence including two photographs of the petitioner and the decedent purporting to show a resemblance between the two, an affirmation of the petitioner's mother, Hanaa Faek El Mghayzel, detailing her relationship with the decedent and averring that the petitioner was his son, and three affirmations from Lebanese attorneys averring, inter alia, that DNA evidence is acceptable proof in cases of lineage confirmation in Lebanese court….

And then it all goes downhill:

This court, in its July 15, 2019 order, granted the petitioner's motion to renew and … granted the petition to the extent of ordering … production of the blood and/or tissue samples held by the respondent to an accredited testing laboratory, and for such laboratory to conduct a genetic marker testing to determine the petitioner's paternity, subject to adequate confidentiality protections….

On August 7, 2019 the Lebanese action was dismissed on the jurisdictional ground that neither the petitioner, his mother, nor the decedent were Lebanese nationals. The petitioner appealed that determination in the Lebanese action to the Court of Appeal of Mount Lebanon ….

On August 19, 2019 the respondent filed the instant motion seeking leave to renew and reargue the court's July 15, 2019 order, and dismissal of the petition or, alternatively, a stay of the court-ordered disclosure. The respondent argues that the Lebanese court's dismissal of the filiation action means that there is no pending foreign proceeding, thereby vitiating any grounds for relief under CPLR 3102(e)….

The respondent does not dispute that the dismissal of the filiation proceeding is not final until the appeal is decided and that new evidence may be considered on appeal. Instead, it argues: 1) jurisdictional issues will prevent the Court of Appeal from reaching the merits of the filiation claim, 2) the petitioner has not explained how he would be able to submit the results of any genetic testing prior to the Court of Appeal hearing, and 3) there was no actual order or subpoena issued by the foreign court requiring production of the tissue samples.

Although the petitioner does not discuss how he intends to overcome the jurisdictional hurdles that led to the initial dismissal of the Lebanese proceeding, or how he intends to present the results of the genetic testing he seeks, this court cannot not speculate or opine on the likelihood of success of the petitioner's appeal in the Lebanese courts. Nor would any such opinion be germane to the underlying issue here of whether there is currently an action pending within the meaning of CPLR 3102(e)…. [A]s an action is considered pending from its inception until the issuance of a final judgment, there has been no final judgment in the Lebanese action until there is proof submitted to this court in admissible form that the Lebanese action is finally determined and no longer pending….

Nor does the court find merit in the branch of respondent's motion seeking, in the alternative, a stay of the petition pursuant to CPLR 2201 pending the disposition of the appeal in Lebanon…. "[I]t is only where the decision in one action will determine all the questions in the other action, and the judgment on one trial will dispose of the controversy in both actions that a case for a stay is presented… What is required is complete identity of parties, causes of action and judgment sought." Here, no such identity exists. The respondent merely seeks a stay of the petition in the hopes that dismissal of the Lebanese action on jurisdictional grounds will moot the petition. Despite the respondent's posture, even were the Lebanese action dismissed on jurisdictional grounds, the relief sought in the petition would not be moot, as the petition could still be granted under CPLR 3102(c).

In that regard, the court notes that on February 26, 2020 and March 6, 2020, the court received letters from counsel for the respondent purporting to attach a decision disposing of the appeal on jurisdictional grounds. According to the purported translation of the decision and unsworn letter from its counsel, on February 26, 2020, the Court of Appeal of Mount Lebanon denied the petitioner's appeal entirely on jurisdictional grounds stating:

"Whereas regarding the current case, it appears there are no correlating elements pointing to the jurisdiction of the Lebanese courts, the relevant parties in the present case being all non-Lebanese, the subject of the case having no relation with Lebanon and not being associated to any interests existing in Lebanon, which means that the correlating elements to the jurisdiction of the Lebanese courts are totally inexistent in this case, since it relates to Saudi personal data of a person declaring he is a Saudi national and that his father is a Saudi national and his mother of the Syrian nationality, which means that the jurisdiction in this respect, is ipso jure interrelated to the Saudi courts."

The respondent also attaches to his letter an affidavit from Alexandre Sakr, a senior partner of the ElKhoury Law Firm and professor of civil procedure and legal terminology at the Saint Joseph University Law School in Beirut. In his affidavit Sakr avers that following the Court of Appeals in Lebanon dismissing the petitioner's filiation case, the judgment is final and enforceable, but is subject to a recourse proceeding before the Court of Cassation in Lebanon, which would review the legal basis for the determination of the Court of Appeals in Lebanon, and were it to quash the challenged judgment, would have the authority to examine the merits of the case and consider additional evidence that may be submitted.

However, a letter from the respondent's counsel does not constitute a basis to deny the petition upon the granting of the renewal as it violates the court's rules against both the submission of letters to the court in further support of motions and against supplemental submissions concerning motions without court approval. Thus, the respondent has not satisfied its burden to dissuade the court from adhering to its prior ruling granting the relief sought in the petition.

Additionally, ignoring these defects in the respondent's unauthorized submission, the petitioner's counsel submits its own letter in response stating that the petitioner intends to appeal the decision to the Lebanese Court of Cassation, within 60 days of the notice of judgment if the Court of Cassation permits it to do so. The petitioner's letter further corroborates the Sakr affidavit inasmuch as it notes that the Court of Cassation likewise has the authority to consider evidence not submitted to the lower court in the same fashion as the prior Lebanese appeals court. Although the petitioner's letter is also an impermissible submission, it further supports the granting of his petition. As discussed above, even if the decision of the lower courts in Lebanon are on appeal, it appears to this court that they are still pending within the meaning of CPLR 3102(e).