Opinion
December 19, 1986
Appeal from the Herkimer County Family Court, Blaugrund, J.
Present — Doerr, J.P., Green, Balio, Lawton and Schnepp, JJ.
Order unanimously reversed, on the law, with costs, and matter remitted to Herkimer County Family Court for further proceedings, in accordance with the following memorandum: Petitioner's testimony in this filiation proceeding that the child was born after a "normal length of pregnancy or period of gestation", that she was neither early nor late with her pregnancy and that her "periods" were regular within the year before she became pregnant established a prima facie case and Family Court erred in dismissing the petition at the close of her proof. The only inference that can be drawn from this testimony is that the pregnancy was within the normal range and that the baby was full term. Although no proof was submitted as to the specific date of impregnation or the date of petitioner's last menstrual period, the record reflects that the parties engaged in intercourse during October and November 1981 which, in this case, is well within the range of the normal period of gestation (see, Matter of Erie County Commr. of Social Servs. v. Boyd, 74 A.D.2d 728). Any inconsistency in the testimony must be resolved by the court at the conclusion of the whole case. Whether the court will dismiss the petition is a matter for it to determine after a full hearing.