Hawthorne on Behalf of Truesdell v. DeBoth

• Decision Date: 18 July 1975
• Citation: 370 N.Y.S.2d 724,49 A.D.2d 674
• Parties: Petition of William S. HAWTHORNE, as Deputy Commissioner of Social Services, County of Erie, on Behalf of Geraldine TRUSEDELL, Appellant, v. William DeBOTH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 724

370 N.Y.S.2d 724

49 A.D.2d 674

Petition of William S. HAWTHORNE, as Deputy Commissioner of

Social Services, County of Erie, on Behalf of Geraldine TRUSEDELL, Appellant, v. William DeBOTH, Respondent.

Supreme Court, Appellate Division, Fourth Department.

July 18, 1975.

James L. Magavern, Peter S. Aiello, Buffalo, for appellant.

Dunn, Reingold, Bestry & Steinhaus, Herschel L. Reingold, Buffalo, for respondent.

Before MARSH, P.J., and MOULE, MAHONEY, DEL VECCHIO and WITMER, JJ.

MEMORANDUM:

An order of filiation previously granted herein was reversed by us on July 6, 1973, 42 A.D.2d 827, 345 N.Y.S.2d 806, and a new trial granted in a memorandum in which, among other things, we directed that petitioner must supply corroborating evidence that the complainant 'was with respondent near the time of the conception'. Upon the retrial plaintiff produced two witnesses whose testimony, if believed, supplied corroboration that respondent was having dates with complainant during the time of conception, and that she dated no other man during this period. Such evidence established a prima facie case, and it was error for the court to grant respondent's motion for non-suit and dismissal of the petition before respondent either testified or rested (Matter of Nancy L. 'Z' v. Kenneth 'AA', 48 A.D.2d 721, 367 N.Y.S.2d 344; Matter of Mary D.G. v. Arnesto C., 39 A.D.2d 643, 331 N.Y.S.2d 325; Erie County Board of Social Welfare v. Truesdale, 15 A.D.2d 862, 224 N.Y.S.2d 726). On this appeal petitioner is entitled to the most favorable inferences which the trier of the facts can draw from the evidence, and in such light petitioner would be entitled to an order of filiation against respondent.

Order unanimously reversed on the law and facts with costs and a new trial granted before another judge.