Department of Social Services v. Charles L.

• Decision Date: 10 November 1980
• Citation: 78 A.D.2d 875,433 N.Y.S.2d 179
• Parties: In the Matter of DEPARTMENT OF SOCIAL SERVICES, on behalf of Linda S. (Anonymous), Appellant, v. CHARLES L. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 179

433 N.Y.S.2d 179

78 A.D.2d 875

In the Matter of DEPARTMENT OF SOCIAL SERVICES, on behalf of

Linda S. (Anonymous), Appellant, v. CHARLES L. (Anonymous), Respondent.

Supreme Court, Appellate Division, Second Department.

Nov. 10, 1980.

David J. Gilmartin, County Atty., Hauppauge (Jane E. Conway, Smithtown, of counsel), for appellant.

Before MOLLEN, P. J., and MANGANO, MARGETT and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a paternity proceeding, the appeal is from an order of the Family Court, Suffolk County, dated August 17, 1979, which dismissed the petition.

Order reversed, on the law, and proceeding remitted to the Family Court for a new hearing consistent herewith, with costs to petitioner to abide the event.

The Family Court, while accepting the testimony of the child's mother and her witness, nevertheless dismissed the petition because of the absence of medical testimony surrounding the fact of prematurity and the period of gestation, which was alleged to be approximately 217 days. This was error. The court should have granted counsel for the petitioner a brief adjournment to permit him to introduce medical evidence as to prematurity. Since this was not done, the order dismissing the petition must be reversed and the case remitted for further proceedings at which medical evidence may be adduced concerning the alleged prematurity of the child (see Matter of Gail O. v. Van Randolph, 60 A.D.2d 944, 401 N.Y.S.2d 323; Matter of Morris v. Terry K., 60 A.D.2d 728, 401 N.Y.S.2d 310; Matter of Kathy R. v. Steven S., 47 A.D.2d 680, 364 N.Y.S.2d 63; Matter of Suzanne J. v. Russell K., 46 A.D.2d 935, 362 N.Y.S.2d 37; Matter of Margie L. v. Gary M., 46 A.D.2d 935, 361 N.Y.S.2d 741).