Beverly W. v. Scott D.

Appellate Division of the Supreme Court of New York

Beverly W. v. Scott D.

37 A.D.2d 904, 325 N.Y.S.2d 312, 1971 N.Y. App. Div. LEXIS 3130

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 1971

StatusPublished

Cited by5 cases

This text of 37 A.D.2d 904 (Beverly W. v. Scott D.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beverly W. v. Scott D., 37 A.D.2d 904, 325 N.Y.S.2d 312, 1971 N.Y. App. Div. LEXIS 3130 (N.Y. Ct. App. 1971).

Pincite

Opinion

Order unanimously reversed on the law and facts, without costs, and petition dismissed. Memorandum: The proof offered by petitioner to meet her burden of proof in this filiation ease failed to meet the standard required in a proceeding of this nature. In view of the difficulty in meeting a charge of paternity, the proof in support of the claim must be clear, convincing and entirely satisfactory, so that a finding against the respondent is supported by more than a mere preponderance of the evidence. (Matter of Edick v. Martin, 34 A D 2d 1096.) Furthermore, “in the face of the practical impossibility of direct contradiction of the complainant upon the issue, we must consider the more carefully her credibility as revealed by her own testimony and by contradictions thereof.” (Drummond v. Dolan, 155 App. Div. 449, 450-451.) Petitioner testified to a single act of intercourse with respondent, occurring on October 30, 1968, which, she asserted, resulted in her pregnancy. Respondent stead[905]*905fastly denied that he had had relations with petitioner on the date in question and, although admitting they were together that evening, gave a different version of the events which occurred. Petitioner’s version was contradicted in part by her mother whose testimony differed from 'her daughter’s as to what happened after the petitioner returned home. The mother also testified that at a conference between the parties and their parents in mid-December, 1968 petitioner made statements which supported respondent’s version of the events on October 30 which conflicted with petitioner’s testimony at the trial. On this state of the record the finding of paternity, based solely on petitioner’s testimony, may not be sustained. (Matter of Hawthorne v. Edward S., 31 A D 2d 426.) (Appeal from order of Monroe County Family Court in paternity proceeding.) Present — Del Yecehio, J. P., Marsh, Houle, Cardamone and Henry, JJ.

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Order unanimously reversed on the law and facts, without costs, and petition dismissed. Memorandum: The proof offered by petitioner to meet her burden of proof in this filiation ease failed to meet the standard required in a proceeding of this nature. In view of the difficulty in meeting a charge of paternity, the proof in support of the claim must be clear, convincing and entirely satisfactory, so that a finding against the respondent is supported by more than a mere preponderance of the evidence. (Matter of Edick v. Martin, 34 A D 2d 1096.) Furthermore, “in the face of the practical impossibility of direct contradiction of the complainant upon the issue, we must consider the more carefully her credibility as revealed by her own testimony and by contradictions thereof.” (Drummond v. Dolan, 155 App. Div. 449, 450-451.) Petitioner testified to a single act of intercourse with respondent, occurring on October 30, 1968, which, she asserted, resulted in her pregnancy. Respondent stead[905]*905fastly denied that he had had relations with petitioner on the date in question and, although admitting they were together that evening, gave a different version of the events which occurred. Petitioner’s version was contradicted in part by her mother whose testimony differed from 'her daughter’s as to what happened after the petitioner returned home. The mother also testified that at a conference between the parties and their parents in mid-December, 1968 petitioner made statements which supported respondent’s version of the events on October 30 which conflicted with petitioner’s testimony at the trial. On this state of the record the finding of paternity, based solely on petitioner’s testimony, may not be sustained. (Matter of Hawthorne v. Edward S., 31 A D 2d 426.) (Appeal from order of Monroe County Family Court in paternity proceeding.) Present — Del Yecehio, J. P., Marsh, Houle, Cardamone and Henry, JJ.

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Bluebook (online)

37 A.D.2d 904, 325 N.Y.S.2d 312, 1971 N.Y. App. Div. LEXIS 3130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beverly-w-v-scott-d-nyappdiv-1971.

Opinion

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