Mannain v. Lay

Appellate Division of the Supreme Court of New York

Mannain v. Lay

33 A.D.2d 1024, 308 N.Y.S.2d 248, 1970 N.Y. App. Div. LEXIS 5621

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

DecidedFebruary 2, 1970

StatusPublished

Cited by14 cases

This text of 33 A.D.2d 1024 (Mannain v. Lay) 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

Mannain v. Lay, 33 A.D.2d 1024, 308 N.Y.S.2d 248, 1970 N.Y. App. Div. LEXIS 5621 (N.Y. Ct. App. 1970).

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Opinion

— 'In a proceeding to establish paternity, the appeal is from an orden of the Family Court, Dutchess County, dated June 26, 1968, which adjudged appellant the father of the child. Order reversed, on the law and the facts, without costs, and petition dismissed. We agree with the holding of the trial court that the fact that petitioner was a married woman during the operative period in question is no bar to this paternity suit (see Matter of Morris v. “White”, 29 A D 2d 905; Matter of “Anonymous” v. “Anonymous”, 43 Misc 2d 1050; Matter of Fitzsimmons v. De Cicco, 44 Misc 2d 307; Matter of Lee v. Stix, 55 Misc 2d 940). However, while the proof was sufficient to establish a meretricious relationship between petitioner and appellant, in our opinion it fell far short of overcoming the presumption of legitimacy by failing to negate access on the part of petitioner’s husband during the period when conception must have occurred (Matter of Gray v. Rose, 32 A D 2d 994; Matter of Black v. Brown, 27 A D 2d 683; People v. Lewis, 25 A D 2d 567; Matter of Lee v. Stix, supra). In the circumstances, petitioner failed to sustain her burden of proving appellant’s responsibility by evidence so clear and convincing as to be entirely satisfactory (see Matter of Commissioner of Welfare of City of N. Y. v. Fields, 25 A D 2d 504; Matter of Rebmann v. Muldoon, 23 A D 2d [1025]*1025163, 164; Phillips v. Tagliavini, 275 App. Div. 1037). Christ, Rabin and Munder, JJ., concur; Beldock, P. J., and Benjamin, J., dissent and vote to affirm the order.

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— 'In a proceeding to establish paternity, the appeal is from an orden of the Family Court, Dutchess County, dated June 26, 1968, which adjudged appellant the father of the child. Order reversed, on the law and the facts, without costs, and petition dismissed. We agree with the holding of the trial court that the fact that petitioner was a married woman during the operative period in question is no bar to this paternity suit (see Matter of Morris v. “White”, 29 A D 2d 905; Matter of “Anonymous” v. “Anonymous”, 43 Misc 2d 1050; Matter of Fitzsimmons v. De Cicco, 44 Misc 2d 307; Matter of Lee v. Stix, 55 Misc 2d 940). However, while the proof was sufficient to establish a meretricious relationship between petitioner and appellant, in our opinion it fell far short of overcoming the presumption of legitimacy by failing to negate access on the part of petitioner’s husband during the period when conception must have occurred (Matter of Gray v. Rose, 32 A D 2d 994; Matter of Black v. Brown, 27 A D 2d 683; People v. Lewis, 25 A D 2d 567; Matter of Lee v. Stix, supra). In the circumstances, petitioner failed to sustain her burden of proving appellant’s responsibility by evidence so clear and convincing as to be entirely satisfactory (see Matter of Commissioner of Welfare of City of N. Y. v. Fields, 25 A D 2d 504; Matter of Rebmann v. Muldoon, 23 A D 2d [1025]*1025163, 164; Phillips v. Tagliavini, 275 App. Div. 1037). Christ, Rabin and Munder, JJ., concur; Beldock, P. J., and Benjamin, J., dissent and vote to affirm the order.

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Bluebook (online)

33 A.D.2d 1024, 308 N.Y.S.2d 248, 1970 N.Y. App. Div. LEXIS 5621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mannain-v-lay-nyappdiv-1970.

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