Ferro v. Bersani
| Citation | 433 N.Y.S.2d 666,78 A.D.2d 1010 |
| Parties | Joan FERRO, Appellant, v. David BERSANI, Respondent. |
| Decision Date | 13 November 1980 |
| Court | New York Supreme Court Appellate Division |
Lipsitz, Green, Fahringer, Roll, Schuller & James, by Denis Kitshen, Buffalo, for appellant.
David R. Knoll, Lockport, for respondent.
Before HANCOCK, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.
Petitioner appeals from an order dismissing her petition, but respondent did not cross-appeal from the trial court's ruling at the close of petitioner's evidence denying his motion to dismiss the petition because it was not brought within two years of the birth of the child (Family Ct. Act, § 517(a)). Inasmuch as that ruling was adverse to respondent and, if reversed, would entitle respondent to prevail, we hold that despite respondent's failure to cross-appeal we have jurisdiction to entertain respondent's contention that the court erred in denying his motion to dismiss at the close of petitioner's proof (CPLR, 5501, subd. (a), par. 1; Kulaga v. State of New York, 37 A.D.2d 58 62-63, 322 N.Y.S.2d 542; aff'd, 31 N.Y.2d 756, 338 N.Y.S.2d 436, 290 N.E.2d 437; 10 Carmody-Wait 2d, N.Y.Prac., § 70:337, p. 607, Siegel, New York Practice, § 530, pp. 734-735). We note, nevertheless, that respondent would have been well advised to cross-appeal and thus have avoided this question (see Practitioner's Handbook for Appeals to the Appellate Divisions of the State of New York, p. 38).
The basis for the court's denial of respondent's motion was that the evidence shows that respondent furnished support for petitioner's child, which excepts the case from the two-year statute of limitations (Family Ct. Act, § 517(a)). The record amply supports that ruling.
Despite respondent's action in supporting the child, the court dismissed the petition because of evidence deprecating petitioner's credibility and indicating that at one time she expressed doubt as to the identity of the father. Such evidence came from a sister of petitioner and the sister's husband. Their cross-examination shows that they were unfriendly to her and no more credible than she.
The undisputed evidence is that for 12 years (1966-1978) petitioner lived as respondent's "kept woman". At all times respondent was married. Petitioner was separated from her husband and after three years of this relationship she was divorced in 1969. Respondent took her and her children to Canada on trips for a week or two at a time. In the middle of those years, in 1972, she gave birth to a son, David, whom respondent recognized as his son. There is no evidence that during all those years petitioner had sexual relations or even social relations with any other man; in...
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