Suzanne "J" v. Russell "K"

46 A.D.2d 935, 362 N.Y.S.2d 37

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1974
• Status: Published

Opinion

Appeal from an order of the Family Court, Albany County, adjudging appellant to be the father of respondent’s child and awarding respondent $15 weekly support for said child. In a paternity suit the petitioner has the burden of establishing each element of the cause of action by clear and convincing evidence (Matter of Lopez v. Sanchez, 84 F Y 2d 662; Matter of Linda “HR” v. Brent " SS”, 40 A D 2d 908). Respondent alleged that conception took place on May 13 and birth on January 18. It was thus incumbent upon her to prove that an act of intercourse occurring in May could produce a baby in January. If the period of gestation had been around 280 days, the court could have taken notice of the fact that it was a full term baby (Erie County Bd. of Social Welfare v. Holiday, 14 A D 2d 832). However, this was not the case and, thus, in order for respondent to prove her case, it was necessary for expert medical testimony to be introduced to ascertain whether it was reasonably certain under the circumstances that the child was born following a 250-day period of gestation (e.g. Baranomski v. Luciano, 23 A D 2d 815). The proof of paternity is therefore not clear and convincing and the order must be reversed and the case remitted for a new trial to permit medical testimony of the child’s prematurity to be introduced. Order reversed, on the law and the facts, and matter remitted for further proceedings not inconsistent herewith, without costs. Kane, Main and Reynolds, JJ., concur; Herlihy, P. J., and Sweeney, J., dissent and vote to affirm in a memorandum by Herlihy, P. J. Herlihy, P. J. (dissenting): We dissent. Under the facts and circumstances of this case, it was unnecessary for the petitioner to adduce expert medical testimony to prove the prematurity of her child.