Commissioner of Social Services of Erie v. Gibson

Appellate Division of the Supreme Court of New York

Commissioner of Social Services of Erie v. Gibson

78 A.D.2d 981, 433 N.Y.S.2d 671, 1980 N.Y. App. Div. LEXIS 13750

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

DecidedNovember 13, 1980

StatusPublished

Cited by7 cases

This text of 78 A.D.2d 981 (Commissioner of Social Services of Erie v. Gibson) 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.

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Commissioner of Social Services of Erie v. Gibson, 78 A.D.2d 981, 433 N.Y.S.2d 671, 1980 N.Y. App. Div. LEXIS 13750 (N.Y. Ct. App. 1980).

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Opinion

Order unanimously reversed, with costs, petition granted and matter remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: In its decision trial court assumed the truth of petitioner’s evidence, but made no specific finding. The court dismissed the petition as a matter of law for lack of expert testimony, because only 255 days elapsed between the alleged single act of sexual intercourse and the birth of the child, the court relying on Matter of Suzanne “J”v Russell “K” (46 AD2d 935). We agree that petitioner’s evidence in this case should be accepted as true. We hold, however, that the 255 days is within the practical range of the normal period of gestation, and that expert testimony is not required in this case (Matter of Erie County Comr. of Social Servs. v Boyd, 74 AD2d 728; cf. Jaynes v Tulla, 70 AD2d 680,682; and see Matter of Morris v Terry K., 70 AD2d 1031; Matter of Leonard v Couse, 83 Misc 2d 631). On remission the court shall fix the amount which respondent must pay to [982]*982petitioner for confinement expenses which it paid and for the support of the child from the date petitioner undertook such support to this date, and the support payments which respondent must make for the child until her maturity. (Appeal from order of Erie County Family Court — paternity.) Present — Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.

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Order unanimously reversed, with costs, petition granted and matter remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: In its decision trial court assumed the truth of petitioner’s evidence, but made no specific finding. The court dismissed the petition as a matter of law for lack of expert testimony, because only 255 days elapsed between the alleged single act of sexual intercourse and the birth of the child, the court relying on Matter of Suzanne “J”v Russell “K” (46 AD2d 935). We agree that petitioner’s evidence in this case should be accepted as true. We hold, however, that the 255 days is within the practical range of the normal period of gestation, and that expert testimony is not required in this case (Matter of Erie County Comr. of Social Servs. v Boyd, 74 AD2d 728; cf. Jaynes v Tulla, 70 AD2d 680,682; and see Matter of Morris v Terry K., 70 AD2d 1031; Matter of Leonard v Couse, 83 Misc 2d 631). On remission the court shall fix the amount which respondent must pay to [982]*982petitioner for confinement expenses which it paid and for the support of the child from the date petitioner undertook such support to this date, and the support payments which respondent must make for the child until her maturity. (Appeal from order of Erie County Family Court — paternity.) Present — Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.

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Bluebook (online)

78 A.D.2d 981, 433 N.Y.S.2d 671, 1980 N.Y. App. Div. LEXIS 13750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioner-of-social-services-of-erie-v-gibson-nyappdiv-1980.

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