Janet K. v. Joseph M.

89 A.D.2d 870, 453 N.Y.S.2d 238, 1982 N.Y. App. Div. LEXIS 18040

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 9, 1982
• Status: Published

Opinion

In a paternity proceeding, the putative father appeals from (1) an order of filiation of the Family Court, Queens County (Palmer, J.), dated July 8,1981 and (2) a temporary order of support of the same court (Corrado, J.), dated November 17, 1981. (We deem the notice of appeal dated December 10, 1981 to be a premature notice of appeal from the final order of support of the same court [Gartenstein, J.], dated January 29,1982.) Appeals from the orders dated July 8,1981 and November 17,1981 dismissed, without costs or disbursements (see Family Ct Act, § 1112). Order dated January 29, 1982 reversed, without costs or disbursements, orders dated July 8, 1981 and November 17, 1981 vacated, and the matter is remitted to the Family Court, Queens County, for further proceedings in accordance herewith. Over objection, petitioner was allowed to read from her personal diary and detail the exact dates when she and appellant allegedly had sexual relations. The record indicates that no foundation for such testimony was established. Therefore, the court erred in allowing such testimony and relying on it in making its determination. It is well established that paternity must be based on clear, convincing and entirely satisfactory evidence (Matter of Department of Social Servs. of Orange County v Alan K., 69 AD2d 861; Matter of Katherine S. v Jerry S., 67 AD2d 926). Accordingly, a new hearing is required. Note should be taken of sections 418 and 532 of the Family Court Act which permit the use of the human leucocyte antigen blood tissue test. The test is highly accurate on the issue of paternity. Lazer, J. P., Gulotta, Bracken and Boyers, JJ., concur.