Jane PP v. Paul QQ

• Decision Date: 28 February 1985
• Citation: 108 A.D.2d 1050,485 N.Y.S.2d 624
• Parties: In the Matter of JANE "PP", * Respondent, v. PAUL "QQ",* Appellant.
• Court: New York Supreme Court — Appellate Division

Page 624

485 N.Y.S.2d 624

108 A.D.2d 1050

In the Matter of JANE "PP", ^* Respondent, v. PAUL "QQ",* Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 28, 1985.

Donald C. Armstrong, Cortland, for respondent.

Lo Pinto & Schlather, Ithaca (James A. Baker, Ithaca, of counsel), for appellant.

Before MAHONEY, P.J., and MAIN, CASEY, WEISS and LEVINE, JJ.

WEISS, Justice.

Appeal from an order of the Family Court of Cortland County, entered May 11, 1983, which directed respondent to pay $60 per week for the support of his infant child, $1,450 in support arrears and $750 for petitioner's counsel fees.

In our initial disposition of this filiation proceeding, we determined that since respondent failed to file a timely notice of appeal from the filiation order, he was collaterally estopped from challenging the paternity finding by way of appeal from the subsequent support order (100 A.D.2d 639, 473 N.Y.S.2d 69). The Court of Appeals subsequently reversed that determination (64 N.Y.2d 15, 483 N.Y.S.2d 1007, 473 N.E.2d 257) and remitted the case to this court for consideration of the paternity issue. Accordingly, we turn to the merits and, in so doing, conclude that the record provides clear and convincing support for the paternity finding.

Initially, we note that Family Court improperly admitted the results of a human leukocyte antigen (HLA) blood test into evidence, since petitioner neither produced a witness who could testify with personal knowledge that the HLA test was prepared and kept in the regular course of business of the hospital (CPLR 4518), nor is there any reference in the record to any certification or authentication (CPLR 4518 Matter of St. Lawrence County Dept. of Social Servs. v. Steve CC., 92 A.D.2d 1038, 461 N.Y.S.2d 557).

Nonetheless, even without the admission of the blood test results, petitioner sustained her burden of establishing paternity (see Matter of Commissioner of Social Servs. v. Philip De G., 59 N.Y.2d 137, 141-142, 463 N.Y.S.2d 761, 450 N.E.2d 681). Petitioner testified that her last menstrual period, prior to the birth of her child, was on June 23, 1981. Thereafter, she had sexual relations with respondent on July 13, 1981, as a result of which she alleges that she became pregnant and a baby was born on March 12, 1982. Although we recognize that the paternity petition alleged sexual intercourse with respondent "on one occasion * * * on or about the 13th day of July", as opposed to petitioner's testimony that she and respondent engaged in sexual intercourse "or four times during the night of July 13, 1981", we discern no undue prejudice to respondent. Certainly, the language of the petition can be interpreted to mean more than one act of sexual intercourse occurred on the "one occasion" and, in any event, respondent was properly given notice of the time period involved.

Petitioner further conceded having sexual intercourse with another individual on the evening of July 12, 1981, but stated that a form of birth control was utilized. She stated that she...