Fitzgerald v. Tamola
| Decision Date | 16 December 1993 |
| Parties | Carolanne FITZGERALD, Petitioner-Appellant, v. John TAMOLA, Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before MURPHY, P.J., and ELLERIN, WALLACH, KASSAL and NARDELLI, JJ.
Order, Family Court, New York County (Bruce Kaplan, J.), entered on September 10, 1992, which, after a hearing, dismissed, with prejudice, the paternity petition dated December 12, 1991, seeking to establish that respondent John Tamola is the father of the infant child, Katherine Fitzgerald, unanimously reversed, on the law and the facts, without costs, the paternity petition is granted, respondent is adjudged the father of Katherine Fitzgerald, and the matter is remanded for a hearing on the issue of child support.
Respondent failed to appear for blood testing, ordered by the court, subsequently presenting a physician's letter that he was on antibiotics at the time of the scheduled test. The court then ordered him to appear for testing ten weeks later and to pay the laboratory fee therefor; but he refused to remain for the test, stating that he could not afford the fee. He rejected petitioner's offer to pay for his test.
Petitioner made a motion to dismiss respondent's answer, to have him held in default of the court's order and declared the child's father, and for an order of support. That motion was denied and a hearing held. Petitioner presented uncontradicted testimony that she had had a sexual relationship with respondent, having sex with him approximately once a week, from October 1988 until she told him in early 1991, that she was pregnant; that during that time she did not date anyone else; specifically that she had not had sex with anyone else during the six-month period before she became pregnant; that she sometimes did not use a birth control device; that at no time did he use one; and that the child was born on November 12, 1991.
Respondent did not testify and, when the court offered him an opportunity to say whether or not he was the father of the child, he declined to do so.
Evidently because the court believed that specific evidence was not presented that the parties had had intercourse "at the time critical to the conception of the child," because there was no reference to missing a menstrual period or to the interaction of the parties when the pregnancy became known (although petitioner testified that she never saw him again after she told him she was pregnant), and because of the court's limited inference from respondent's failure to submit to blood testing, i.e., that the blood test would not have excluded respondent's paternity, the court found that there was a lack of clear and convincing evidence of paternity and it dismissed the petition.
That was clearly error....
To continue reading
Request your trial
-
18 Assocs., LLC v. Court St. Pizza, Inc.
...was more likely than plaintiff to have records evidencing payment and defendant failed to produce such records]; Fitzgerald v. Tamola, 199 A.D.2d 122, 123 [1993] [where an adversary withholds evidence in his control that would be likely to support his version of the case, the strongest infe......
- People v. Hill
-
Richard W v. Roberta Y
...46). And if William refuses to submit to the test, an adverse inference may then be drawn against him (see, Fitzgerald v. Tamola, 199 A.D.2d 122, 123, 605 N.Y.S.2d 67; Matter of Joseph P.M. v. Boyce R., 127 Misc.2d 931, 933-934, 487 N.Y.S.2d 685). This is not to suggest that the presumption......
-
Lucille Ann D. v. David F.K.
...months preceding the birth of the child (see, Matter of Taiwana Y. v. Benjamin Z., 204 A.D.2d 790, 611 N.Y.S.2d 701; Fitzgerald v. Tamola, 199 A.D.2d 122, 605 N.Y.S.2d 67). In light of the proof that petitioner had sexual intercourse only with respondent, there was no need for medical testi......