Department of Social Services v. Hector S.

Appellate Division of the Supreme Court of New York

Department of Social Services v. Hector S.

81 A.D.2d 915, 439 N.Y.S.2d 192, 1981 N.Y. App. Div. LEXIS 11639

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

DecidedMay 26, 1981

StatusPublished

Cited by1 cases

This text of 81 A.D.2d 915 (Department of Social Services v. Hector S.) 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

Department of Social Services v. Hector S., 81 A.D.2d 915, 439 N.Y.S.2d 192, 1981 N.Y. App. Div. LEXIS 11639 (N.Y. Ct. App. 1981).

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Opinions

•— In a paternity proceeding, petitioner appeals from an order of the Family Court, Suffolk County, entered September 25, 1979, which, after a hearing, adjudged that respondent was not the father of the child and dismissed the petition. Order reversed, on the law and the facts, without costs or disbursements, it is determined that respondent is the father of the child, and the proceeding is remitted to the Family Court, Suffolk County, to fix support. At the hearing, petitioner testified that respondent waf the only person with whom she had sexual intercourse during the period of time when conception had to have occurred. Petitioner also presented witnesses who testified as to the association between respondent and herself and as to her presence on several occasions in respondent’s apartment. In view of such evidence, which was not disputed, it is evident that paternity was established by clear, convincing and entirely satisfactory proof. The Family Court, however, made a contrary determination solely because it found petitioner to be unworthy of belief. In the usual case, where a determination rests essentially on an assessment of credibility, the finding of the hearing Judge, sitting without a jury, is accorded great weight (see, e.g., Matter of Susan W. v Amhad Q., 65 AD2d 594). That rule notwithstanding, we cannot agree that paternity was not established by the requisite degree of proof. As the Family Court itself noted, the fact that petitioner testified falsely as to whether she had an abortion in the past does not alone preclude acceptance of her proof. Moreover, any inconsistencies which may be gleaned from petitioner’s testimony concerning her menstrual cycle are insignificant, as they do not provoke any doubt or question that the child was conceived as a result of sexual intercourse with respondent. Lazer, J.P., Gibbons and Gulotta, JJ., concur.

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•— In a paternity proceeding, petitioner appeals from an order of the Family Court, Suffolk County, entered September 25, 1979, which, after a hearing, adjudged that respondent was not the father of the child and dismissed the petition. Order reversed, on the law and the facts, without costs or disbursements, it is determined that respondent is the father of the child, and the proceeding is remitted to the Family Court, Suffolk County, to fix support. At the hearing, petitioner testified that respondent waf the only person with whom she had sexual intercourse during the period of time when conception had to have occurred. Petitioner also presented witnesses who testified as to the association between respondent and herself and as to her presence on several occasions in respondent’s apartment. In view of such evidence, which was not disputed, it is evident that paternity was established by clear, convincing and entirely satisfactory proof. The Family Court, however, made a contrary determination solely because it found petitioner to be unworthy of belief. In the usual case, where a determination rests essentially on an assessment of credibility, the finding of the hearing Judge, sitting without a jury, is accorded great weight (see, e.g., Matter of Susan W. v Amhad Q., 65 AD2d 594). That rule notwithstanding, we cannot agree that paternity was not established by the requisite degree of proof. As the Family Court itself noted, the fact that petitioner testified falsely as to whether she had an abortion in the past does not alone preclude acceptance of her proof. Moreover, any inconsistencies which may be gleaned from petitioner’s testimony concerning her menstrual cycle are insignificant, as they do not provoke any doubt or question that the child was conceived as a result of sexual intercourse with respondent. Lazer, J.P., Gibbons and Gulotta, JJ., concur.

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Bluebook (online)

81 A.D.2d 915, 439 N.Y.S.2d 192, 1981 N.Y. App. Div. LEXIS 11639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-social-services-v-hector-s-nyappdiv-1981.

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