Opinion
Decided July 2, 1985
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Leonard F. Bersani, J.
Kenneth L. Bobrow for appellant.
Leslie R. Lewis for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the order of Family Court reinstated.
This proceeding was commenced by the Commissioner of Social Services on behalf of petitioner who gave birth to a child out of wedlock on July 9, 1982. The attending physician at the time of birth testified at trial that the child was born approximately four weeks prematurely, and calculated the expected date of birth to be August 4, 1982. Hospital records indicating that the birth was premature also were introduced into evidence. Petitioner testified that she first had intercourse with respondent on November 14, 1981, and admitted having sexual intercourse with a third party on October 9, 1981. She also testified that she had a menstrual period on November 1 through November 5, 1981 and that this was the last normal period she had prior to giving birth in July. Respondent did not testify at the trial.
The Trial Judge's assessment of the credibility of the witness' testimony is to be afforded great weight, and respondent's refusal to testify allows the strongest inferences to be drawn against him which the opposing evidence permits. ( Noce v Kaufman, 2 N.Y.2d 347; Matter of Commissioner of Social Servs. [ Patricia A.] v Philip De G., 59 N.Y.2d 137.) Given the testimony that a normal menstrual period occurred between the two disputed dates of conception and the medical testimony that the child was born prematurely, which testimony places the date of intercourse with respondent within an accepted period of gestation, we agree that the determination of Family Court adjudging respondent to be the father is supported by clear and convincing evidence.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.