K v. L
| Decision Date | 15 June 1970 |
| Citation | 34 A.D.2d 1036,311 N.Y.S.2d 319 |
| Parties | In the Matter of Anne K * , Respondent, v. Richard L * , Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hugh Hanrahan, Albany, for respondent.
Nolan & Heller, Mark L. Heller, Albany, for appellant.
Before HERLIHY, P.J., and AULISI, STALEY, COOKE and SWEENEY, JJ.
Appeal by the respondent from an order of filiation of the Albany County Family Court entered on January 31, 1969.
The petitioner initiated the present proceeding to secure support for her male child born out of wedlock on July 30, 1968. In her bill of particulars she stated that her last menstruation prior to conception was October 6 to October 11, 1967 and she stated that she and respondent had sexual intercourse on 'October 20, 1967, at 11:30 a.m. and 5:00 p.m.' at a specific address and on 'November 1, 1967' at the same address. Upon her direct examination and cross examination at the trial the petitioner testified that she and respondent did have sexual intercourse 'around the 20th, the day that he got out of * * * Hospital' and again about two weeks later. As to the October date, it became obvious on the trial that the petitioner was in error on the exact date. The respondent produced hospital records which showed that he was hospitalized on October 20 and released on October 21, 1967. A motion was made to amend the bill of particulars by petitioner's counsel whereupon the respondent's counsel requested additional time to prepare a defense. The court did not expressly grant the motion to amend or deny the request for an extension but simply reserved decision and about ten days later rendered a final decision on the merits.
The respondent claimed to be surprised by the change in the October date, but all of the witnesses appeared to be uncertain as to dates. The court did not find that intercourse occurred on either of the alleged dates, but simply found the respondent to be the father. The court recites in its decision that both parties were examined before the court, but it is patent that the respondent did not testify and instead offered evidence tending to show that he could not have been with the petitioner on the dates in question. The decision of the trial court in favor of petitioner establishes that any issues of credibility were implicitly determined in her favor.
Credibility having been determined in favor of the petitioner, her testimony as to the November incident remains without direct dispute by the respondent. The testimony as to his inability to have access to petitioner in...
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Com'r of Social Services of City of New York, In re
...requirement that a mother's testimony identifying a respondent as the father of her child be corroborated. See Matter of Anne K. v. Richard L., 34 A.D.2d 1036, 311 N.Y.S.2d 319 and 35 A.D.2d 624, 314 N.Y.S.2d 175 (3rd Dept. 1970); Matter of Greenberg v. Colman, 32 A.D.2d 913, 302 N.Y.S.2d 3......
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'K' v. 'L', Matter of
...1969. Decision of the instant appeal was previously withheld and the case remitted to the trial court for appropriate findings (34 A.D.2d 1036, 311 N.Y.S.2d 319, (decided June 15, 1970)), in accordance with which an amended decision of the Family Court has been filed. We find no basis to di......