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March 2, 1994

BENJAMIN V. LAMBERT, Defendant(s).

The opinion of the court was delivered by: JOHN E. SPRIZZO



 This action for a declaratory judgment arises out of a controversy over the enforceability of an agreement for the support of an illegitimate child (the "Support Agreement") entered into pursuant to § 516 of the New York Family Court Act by the plaintiff-mother and the defendant. Defendant in the above-captioned action moves for a stay pending resolution of Lambert v. Williams, No. 115655/93, a related action currently before the Supreme Court of the State of New York. For the reasons that follow, defendant's motion is granted.


 On March 27, 1988, the plaintiff gave birth to a son. See Complaint P 6. On or about April 2, 1990, the plaintiff instituted a paternity suit against the defendant in the Family Court of the State of New York. See Affidavit of Stanley S. Arkin, Esq., sworn to February 22, 1993 ("Arkin Aff."), Ex. A.

 After neither an acknowledgement nor a judicial determination of paternity, the plaintiff and defendant entered into an agreement for the support of the illegitimate child (the "Support Agreement") pursuant to N.Y. Fam. Ct. Act § 516. *fn1" See Arkin Aff. Ex B.

 Under the Support Agreement, the defendant agreed to pay the plaintiff $ 250,000 for the child's support, Arkin Aff. Ex. B P 1, in exchange for the plaintiff's waiver, release, and discharge of the defendant from any and all claims in connection with the child's birth, support, education and maintenance. Arkin Aff. Ex. B. P 2(d). The parties also agreed that, pursuant to N.Y. Fam. Ct. Act § 516(c), approval of the Support Agreement by the Court and the complete performance by the defendant of his obligations under the Agreement would bar all other remedies of the plaintiff or the child against the defendant for expenses relating to the child's birth, support, education and maintenance. Arkin Aff. Ex. B P 6. The Agreement was approved by a Justice of the Family Court of the State of New York, who specifically found that the payment adequately provided for the child's support, education and maintenance. Arkin Aff. Ex. C.

 On or about October 30, 1992, the defendant commenced an action against the plaintiff in the Supreme Court of the State of New York for breach of the Support Agreement, intentional infliction of emotional distress, and a declaratory judgment with respect to his rights under the Agreement and New York Family Court Act § 516. Arkin Aff. Ex. D. Shortly thereafter, on or about November 9, 1992, the plaintiff commenced this action (the "federal court action") for a judgment declaring N.Y. Fam. Ct. Act § 516 unconstitutional under the Equal Protection clause of the 14th Amendment to the United States Constitution because § 516, as it has previously been construed by the New York Court of Appeals, see Bacon v. Bacon, 46 N.Y.2d 477, 414 N.Y.S.2d 307, 386 N.E.2d 1327 (N.Y. 1979), constitutes an impermissible discrimination between legitimate children, who may seek to modify child support agreements, and illegitimate children, who may not. See Complaint.

 The defendant's state court action was removed to this Court, see Notice of Removal filed November 23, 1992, and voluntarily dismissed without prejudice on June 24, 1993. See Stipulation and Order dated June 24, 1993. At or about the same time that the removed action was dismissed, the defendant filed another action in the Supreme Court of the State and County of New York (the "state court action"), in which he requested enforcement of the § 516 Support Agreement and damages for a breach thereof and intentional infliction of distress. See Affidavit of Victoria Lea Smith, Esq., sworn to September 13, 1993 ("Smith Aff."), App. 1. Plaintiff answered the state action complaint on August 15, 1993, and counterclaimed for a child support order and a judgment declaring that § 516 violates the Equal Protection clause of the 14th Amendment. Smith Aff. App. 2.


 While the federal courts are generally required to exercise their power to resolve disputes properly within their jurisdiction, see New Orleans Pub. Serv. Inc. v. Council of New Orleans, 491 U.S. 350, 358, 105 L. Ed. 2d 298, 109 S. Ct. 2506 (1989), under certain circumstances, for reasons of federal-state comity, federal courts may and should abstain from deciding certain claims. First, under Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941) ("Pullman abstention"), a federal court should avoid deciding an issue of federal constitutional law where affording a state court the opportunity to construe the state law in the first instance may obviate the need for a federal court to pass upon the constitutionality of a state statute. Second, under Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943) ("Burford abstention"), a federal court should dismiss or remand an action involving difficult questions of state law where federal intervention would unnecessarily conflict with the administration by a state of its own affairs. Third, under Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976) ("Colorado River abstention"), a federal court to avoid duplicative litigation may stay an action when there is a concurrent, separate action pending in the state court that raises the same or substantially the same issues. Finally, under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) ("Younger abstention"), in the absence of bad faith, fraud, or irreparable harm, a federal court must abstain from enjoining ongoing state criminal proceedings. *fn2"

 There are several reasons why Pullman abstention is particularly appropriate here. First, although the New York Court of Appeals rejected an equal protection challenge to § 516 in 1979 in Bacon, supra, 414 N.Y.S.2d at 307, that decision was rendered nearly ten years before the United States Supreme Court, in Clark v. Jeter, 486 U.S. 456, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988), invalidated a Pennsylvania statute of limitations for impermissibly discriminating between children on the basis of legitimacy. In that case, the Supreme Court concluded that because "increasingly sophisticated tests for genetic markers permit the exclusion of over 99 per cent of those who might be accused of paternity," id. at 465, Pennsylvania's rationale for limiting the time within which paternity and support actions should be brought on behalf of illegitimate children, i.e., the state's interest in avoiding stale or fraudulent claims, was insufficient to satisfy the Supreme Court's "intermediate scrutiny" analysis. Id. at 465. Whether the recent availability of such tests similarly undermines the rationale for § 516 espoused in 1979 in Bacon, i.e., the state's interest in settling support claims where paternity is uncertain, is now unclear. Thus, the first requisite for Pullman abstention has been met. See McRedmond, supra, 533 F.2d 757, 761.

 Moreover, the second and third requisites to Pullman abstention, as set forth in McRedmond v. Wilson, supra, 533 F.2d at 761, also exist, i.e., the constitutional issue depends on the interpretation of the state law and the state law must be susceptible to an interpretation that would avoid or modify the federal constitutional issue, exist. This is especially true since, although the lower state courts have followed Bacon in rejecting equal protection challenges to § 516 even after the Supreme Court's decision in Clark v. Jeter in 1988, see Daniel J.G. v. Michael M., 150 Misc. 2d 784, 571 N.Y.S.2d 372, 374 (Sup. Ct. 1991), the New York Court of Appeals has since held that the Commissioner of Social Services may seek an increase in support of an illegitimate child where a child is in need of public assistance and a filiation order has been entered. See Commissioner of Social Servs. v. Ruben O., 80 N.Y.2d 409, 590 N.Y.S.2d 847, 605 N.E.2d 334 (N.Y. 1992). *fn3" Given the improvement in the technology now available to establish paternity, relied on in Jeter, supra, 482 U.S. 451, 465, there is strong reason to believe that the New York Court of Appeals may afford similar relief from § 516 where paternity can be established by more reliable scientific methods. Moreover, it is clear that were the state to construe § 516 in the fashion described above, the constitutional question presented here would not have to be decided. See County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959).

 In sum, the Court finds that abstention will best further the interests of both federal-state comity and judicial economy. Since Pullman abstention requires a stay pending a decision in the state court action and the retention of jurisdiction, see United States v. Michigan Nat'l Corp. 419 U.S. 1, 4, 42 L. Ed. 2d 1, 95 S. Ct. 10 (1974), not a dismissal of the federal court action, see Zwickler v. Koota, 389 U.S. 241, 244 n.4, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967), this Court will retain jurisdiction until an authoritative state court ruling is obtained. Once that ruling has been obtained, the parties may return to this Court for a determination of any remaining federal constitutional questions. England v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411, 415-17, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964).


 For the reasons stated above, it is hereby

 ORDERED that this case be transferred to the Suspense Docket of this Court until March 1, 1995, with leave to either party to apply on five (5) days' notice for its restoration to trial calendar of this Court upon a final disposition in the state court action, and it is further

 ORDERED that a Pre-Trial Conference shall be held on March 18, 1995 at 10:30 AM in Courtroom 705.

 Dated: New York, New York

 March 2, 1994

 John E. Sprizzo

 United States District Judge

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