Kathy R v. Steven S

47 A.D.2d 680, 364 N.Y.S.2d 63, 1975 N.Y. App. Div. LEXIS 8904

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1975
• Status: Published

Opinions

— Appeal from an order of the Family Court, Otsego County, entered May 8, 1974, which adjudged appellant to be the father of petitioner’s child and directed him to pay toward the child’s support and the medical and hospital bills. Appellant raises two issues on this appeal, the first of which involves the trial court’s refusal to adjourn the proceeding to allow appellant to produce certain witnesses. He also contends that the evidence was insufficient to establish his paternity. Specifically, he maintains that medical testimony was required as to the probable date of conception. Petitioner testified that she had sexual intercourse with appellant for the first time on April 2, 1973. The baby was bom as the result of a normal birth on December 16, 1973, indicating a gestation period of only 258 days. Clearly, this was not the noraml accepted period of gestation of 280 days. The result of a blood test was inconclusive. In the absence of expert medical testimony to ascertain whether it was reasonably certain under the circumstances that the child was bom following a substantially short gestation period, the proof of paternity is not satisfactory. In view of our recent decisions we must remand for a new trial to permit the introduction of medical testimony of the child’s premature birth. (Matter of Suzawne “ J” v. Russell “K ”, 46 A D 2d 935; Matter of Margie “L” V. Gary “M”, 46 A D 2d 935.) In the light of this determination, it is unnecessary to reach appellant’s first contention. Order reversed, on the law and the facts, and matter remitted for further proceedings not inconsistent herewith, without costs. Greenblott, J. P. Kane, Main and Larkin, JJ., concur; Sweeney, J., dissents and votes to affirm in the following memorandum.