Pandozy v. Perry X. ( 1988 )

Levine and Mercure, JJ.,

concur in part and dissent in part in a memorandum by Levine, J. Levine, J. (concurring in part and dissenting in part). We agree with the majority that, based upon Family Court’s finding that conception occurred on February 11, 1983, reversal is required because of the absence of expert medical testimony to explain the apparent prematurity of the child born 244 days later. However, we are of the view that the case should be remitted for a new fact-finding hearing, rather than dismissed outright, as held by the majority. The mother’s initial testimony was that the single act of intercourse with respondent took place on January 18 or 19, 1983. Acceptance of that testimony would have been consistent with the sonogram results and the other medical evidence that the child was born full term. The foregoing proof, taken with the results of the combined HLA test indicating a 94.9% probability of paternity, clearly established a prima facie case (see, Matter of Duquette v Edward FF., 106 AD2d 694, lv denied 65 NY2d 602). On this version of the facts, the concession by the mother that she had intercourse with another young man starting February 15, 1983 would not have impaired the proof of respondent’s paternity. The mother’s sexual relations with the other person would have occurred outside the critical period of possible conception and, in any event, her testimony was that contraception was employed (see, supra). Thus, the infirmity in petitioner’s proof arises solely out of Family Court’s finding that the only intercourse between the mother and respondent (and, hence, conception) occurred on February 11, 1983. We disagree with the majority that this finding was consistent with "the only credible evidence”. Indeed, this finding was based upon extremely ambivalent testimony by the mother which is subject to other interpretations, and is inconsistent with the medical evidence previously discussed, which strongly supports the mother’s initial testimony that intercourse and conception took place some four weeks earlier.

In view of the fact that, on one version of the credible evidence, paternity was satisfactorily established and that, on a new hearing, petitioner may well be able to produce medical or other evidence to clear up the ambiguities resulting from Family Court’s finding on the date of conception, remittal for a new hearing is dictated, rather than dismissal (see, Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996; Matter of Riley v Benware, 105 AD2d 1122,1123).