MATTER OF LICCIONE v. John

New York Court of Appeals

MATTER OF LICCIONE v. John

482 N.E.2d 917, 65 N.Y.2d 826, 65 N.Y. 826, 493 N.Y.S.2d 121, 1985 N.Y. LEXIS 15710

CourtNew York Court of Appeals

DecidedJuly 2, 1985

StatusPublished

Cited by32 cases

This text of 482 N.E.2d 917 (MATTER OF LICCIONE v. John) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

MATTER OF LICCIONE v. John, 482 N.E.2d 917, 65 N.Y.2d 826, 65 N.Y. 826, 493 N.Y.S.2d 121, 1985 N.Y. LEXIS 15710 (N.Y. 1985).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Family Court reinstated.

This proceeding was commenced by the Commissioner of Social Services on behalf of petitioner who gave birth to a child out of wedlock on July 9, 1982. The attending physician at the time of birth testified at trial that the child was born approximately four weeks prematurely, and calculated the expected date of birth to be August 4, 1982. Hospital records indicating that the birth was premature also were introduced into evidence. Petitioner testified that she first had intercourse with respondent on November 14,1981, and admitted having sexual intercourse with a third party on October 9, 1981. She also testified that she had a menstrual period on November 1 through November 5, 1981 and that this was the last normal period she had prior to giving birth in July. Respondent did not testify at the trial.

The Trial Judge’s assessment of the credibility of the witness’ testimony is to be afforded great weight, and respondent’s refusal to testify allows the strongest inferences to be drawn *828 against him which the opposing evidence permits. (Noce v Kaufman, 2 NY2d 347; Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137.) Given the testimony that a normal menstrual period occurred between the two disputed dates of conception and the medical testimony that the child was born prematurely, which testimony places the date of intercourse with respondent within an accepted period of gestation, we agree that the determination of Family Court adjudging respondent to be the father is supported by clear and convincing evidence.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Family Court reinstated.

This proceeding was commenced by the Commissioner of Social Services on behalf of petitioner who gave birth to a child out of wedlock on July 9, 1982. The attending physician at the time of birth testified at trial that the child was born approximately four weeks prematurely, and calculated the expected date of birth to be August 4, 1982. Hospital records indicating that the birth was premature also were introduced into evidence. Petitioner testified that she first had intercourse with respondent on November 14,1981, and admitted having sexual intercourse with a third party on October 9, 1981. She also testified that she had a menstrual period on November 1 through November 5, 1981 and that this was the last normal period she had prior to giving birth in July. Respondent did not testify at the trial.

The Trial Judge’s assessment of the credibility of the witness’ testimony is to be afforded great weight, and respondent’s refusal to testify allows the strongest inferences to be drawn *828 against him which the opposing evidence permits. (Noce v Kaufman, 2 NY2d 347; Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137.) Given the testimony that a normal menstrual period occurred between the two disputed dates of conception and the medical testimony that the child was born prematurely, which testimony places the date of intercourse with respondent within an accepted period of gestation, we agree that the determination of Family Court adjudging respondent to be the father is supported by clear and convincing evidence.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

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482 N.E.2d 917, 65 N.Y.2d 826, 65 N.Y. 826, 493 N.Y.S.2d 121, 1985 N.Y. LEXIS 15710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-liccione-v-john-ny-1985.

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