Commissioner of Social Services of Erie County on Behalf of Scott v. Simons

• Citation: 87 A.D.2d 993,450 N.Y.S.2d 126
• Parties: In the Matter of the COMMISSIONER OF SOCIAL SERVICES OF ERIE COUNTY on Behalf of Vanessa SCOTT, Appellant, v. Bernard SIMONS, Respondent.
• Decision Date: 02 April 1982
• Court: New York Supreme Court Appellate Division

Page 126

450 N.Y.S.2d 126

87 A.D.2d 993

In the Matter of the COMMISSIONER OF SOCIAL SERVICES OF ERIE COUNTY on Behalf of Vanessa SCOTT, Appellant,

v.

Bernard SIMONS, Respondent.

Supreme Court, Appellate Division Fourth Department.

April 2, 1982.

Robert Casey, County Atty. by Richard Usen, Buffalo, for appellant.

Bernard Simons, pro se.

Before HANCOCK, J. P., and DOERR, DENMAN, BOOMER, and SCHNEPP, JJ.

MEMORANDUM:

We disagree with Family Court that petitioner failed to establish paternity by clear and convincing evidence. The evidence established beyond doubt that respondent had intercourse with petitioner on February 9, 1979. A full-term male child was born on October 31, 1979. The period of 265 days from the date of conception to the date of birth is well within the practical range of a normal period of gestation (see Matter of Erie County Comr. of Social Servs. v. Boyd, 74 A.D.2d 728, 425 N.Y.S.2d 692). In relying on the range stated in Matter of Morris v. Terry K., 70 A.D.2d 1031, 418 N.Y.S.2d 174), Family Court failed to distinguish between the range for the duration of pregnancy and the range for the period of gestation.

Family Court also erred in its determination that persons other than respondent had relations with petitioner during the period in question. Petitioner testified that she had no relations with anyone else from December, 1978 through March, 1979. Respondent's sister, while corroborating that respondent had sexual relations with petitioner on February 9th, testified that in December, 1978 petitioner told her that she had sexual relations with the father of her first child. The sister also testified that she has seen two other men in petitioner's apartment in December and that one of those men was patting and touching petitioner "in a sexual way" on two occasions. She stated further that she saw two or three different men go to the apartment, although she could not say whether or not they stayed.

Where the determination in such proceedings rests basically on a resolution of credibility, appellate courts generally accord great weight to the findings of the trial judge (see Nancy V. v. Raymond E. C., 75 A.D.2d 599, 426 N.Y.S.2d 805; Matter of Susan W. v. Amhad Q., 65 A.D.2d 594, 409 N.Y.S.2d 262; People v. Kelly, 20 A.D.2d 740, 246 N.Y.S.2d 877). However, where the evidence in a particular case compels a different conclusion, an appellate court will not hesitate to reverse a determination of a trial court (Matter of Seeberg v. Davis, 84 A.D.2d 262, 263, 447 N.Y.S.2d 168). The direct evidence of paternity in the record cannot be overcome by the mere innuendo of access by others. In addition to the familial relationship between respondent and his sister, the sister admitted that she and petitioner, who had been close friends, had had an...