Van Alstyne on Behalf of P v. David Q

• Decision Date: 03 March 1983
• Citation: 92 A.D.2d 971,460 N.Y.S.2d 848
• Parties: In the Matter of James R. VAN ALSTYNE, as Commissioner of Social Services of Columbia County, on Behalf of Penny Ann "P" * , Respondent, v. DAVID "Q" *, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 848

460 N.Y.S.2d 848

92 A.D.2d 971

In the Matter of James R. VAN ALSTYNE, as Commissioner of

Social Services of Columbia County, on Behalf of Penny Ann "P" ^*, Respondent, v. DAVID "Q" *, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 3, 1983.

Ralph C. Lewis, Jr., Catskill, for appellant.

Victor M. Meyers, Hudson (Richard Koweek, Hudson, of counsel) for respondent.

Robert Abrams, Atty. Gen. (Betsy Broder, Asst. Atty. Gen., of counsel) appeared pursuant to § 71, Executive Law, in support of constitutionality of Family Court Act § 517(b).

Before KANE, J.P., and MIKOLL, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Family Court of Columbia County, entered April 22, 1982, which adjudicated respondent to be the father of a child borne out of wedlock.

Following a hearing initiated by petitioner, respondent was adjudicated to be the father of Deborah "P", born August 2, 1974 to 16-year-old unmarried Penny Ann "P". Although the sparse record shows that the entire evidence before the Family Court was the mother's testimony, we must affirm in the absence of any evidence in opposition to the adjudication. The mother testified to sexual participation with respondent within the time frame of her pregnancy; that she had no other sexual activity with anyone, and that he allegedly admitted to her that he was the child's father. Respondent did not cross-examine the witness and rested his case without offering any proof.

In paternity proceedings, paternity must be established to the point of entire satisfaction of the court by clear and convincing evidence (Matter of Lopez v. Sanchez, 34 N.Y.2d 662, 355 N.Y.S.2d 581, 311 N.E.2d 52; Matter of Linda WW. v. William XX., 69 A.D.2d 918, 415 N.Y.S.2d 275). On appeal, the record must be carefully scrutinized to determine whether the standard of proof has been met (Matter of Renee "G" v. William "H", 46 A.D.2d 823, 360 N.Y.S.2d 514, affd. 39 N.Y.2d 812, 385 N.Y.S.2d 763, 351 N.E.2d 430). Appellate courts are reluctant to overturn findings of fact based on the credibility of a witness or to substitute their judgment for that of the trial court (Matter of Morris v. Terry K, 60 A.D.2d 728, 729, 401 N.Y.S.2d 310). On this record, in which petitioner's "bare bones" proof of paternity is uncontroverted, we must affirm the findings of the trial court on that issue. In the absence of any proof whatsoever by respondent, the strongest inferences from the proof may be drawn against him (Matter of O'Connor v. Sanford, 72 A.D.2d 884, 421 N.Y.S.2d 936; Matter of Jay v. Andrew "Y", 48 A.D.2d 716, 367 N.Y.S.2d 333).

Respondent argues that the petition must be dismissed because the proof failed to show that the mother or her child is or is likely to become a public charge, which is the predicate upon which a public welfare official may commence paternity proceedings (Family Ct. Act, § 522). The record is devoid of any testimony or other evidence to support the allegation that the mother and/or child is, or is likely to become a public charge. A motion to dismiss the petition under CPLR 3211 (subd. [a], par. 3), based upon the fact that the party asserting the cause of action has not legal capacity to sue, would, in the absence of proof, have been properly granted. Respondent failed to make such motion during or at the conclusion of the trial, raising it for the first time in his brief on this appeal. This court has consistently held that matters not raised below will not be considered for the first time upon appeal (Wagner v. Town of Ticonderoga, 88 A.D.2d 1011, 451 N.Y.S.2d 931; Board of Trustees of Vil. of Lansing v. Pyramid Cos., 51 A.D.2d 414, 416, 381 N.Y.S.2d 898).

Respondent's remaining argument attacks the constitutionality of the 10-year Statute of Limitations in section 517 (subd. [b] ) of the Family Court Act as a denial of equal protection under the Fourteenth Amendment. A public welfare official is authorized to institute paternity proceedings (under authority of Family Ct. Act, § 522), within 10 years after the birth of a child, whereas section 517 (subd. [a] ) limits the time for commencement of such proceedings by a mother to two years after birth. Respondent further contends that this proceeding, brought more than seven years after the birth, creates an insurmountable burden of producing proof in his defense. Petitioner contends that respondent lacks standing to contest the constitutional issue, citing Matter of McConnell v. Coveney, 54 A.D.2d 769, 388 N.Y.S.2d 13, because his interest is not of the type cognizable...