Mancini v. Simes

247 A.D.2d 270, 667 N.Y.S.2d 908, 1998 N.Y. App. Div. LEXIS 1410

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1998
• Status: Published

Opinion

Order, Family Court, New York County (George Jurow, J.), entered on or about January 24, 1997, which, after a nonjury trial, granted petitioner’s application for an order of filiation against respondent, and bringing up for review a prior order, entered on or about June 26, 1996, which, after a traverse hearing, denied respondent’s motion to dismiss the proceeding for lack of jurisdiction, unanimously affirmed, with costs.

The motion to dismiss for lack of jurisdiction was properly denied on the ground that the process server’s uncontradicted testimony at the hearing dispelled any 'doubts created by his affidavit of service. The finding of paternity was amply supported by the trial evidence, including expert testimony that respondent’s paternity is not ruled out by his low sperm count and indeed is a virtual certainty in view of the results of the tests conducted pursuant to Family Court Act § 532, and clear and convincing evidence of exclusive access during the period of conception. We have considered respondent’s other arguments and find them to be without merit.

Concur — Milonas, J. P., Ellerin, Williams and Tom, JJ.