Opinion
April 8, 1971
Appeal from the Onondaga County Family Court.
Present — Marsh, J.P., Gabrielli, Moule, Cardamone and Henry, JJ.
Order unanimously reversed on the law and facts and petition dismissed, all without costs. Memorandum: Respondent appeals from a Family Court order of filiation declaring him to be the father of petitioner's child born on April 17, 1967. Petitioner testified without objection that her doctor said the child was conceived in the month of August, 1966. That time is consistent with medical authorities. (Gray, Attorneys' Textbook of Medicine [2d ed.] p. 704.) During the first week of August she visited a man, (Session) in New Jersey whom she had frequently dated in 1963 when he resided near her home. He paid the expenses of her trip and she stayed with him in his apartment for the weekend. He had visited her in her apartment in July and she had visited him in June when he also paid her expenses. They displayed affection for each other by frequently kissing and hugging each other in his apartment and in his bedroom. Petitioner first met respondent in late May, 1966 when he came to her apartment in response to a communication which she had sent to the life insurance company by which he was employed. She testified that within a week she had sexual intercourse with him and continued to do so four or five times per week until September. Respondent denied that he had intercourse with her and explained that he was at her apartment to sell life insurance to petitioner and the lady who shared the apartment with her and to collect premiums thereon. Petitioner did not inform appellant that she was pregnant and he did not know that she was until petitioner's sister told him in March, 1967. "Such casualness was strange conduct for a mature woman validly asserting a claim of fatherhood against a respondent who denies responsibility." ( Roth v. Melzer, 34 A.D.2d 751.) Petitioner's testimony that she engaged in sexual intercourse four or five times per week with a man she had known less than a week, knowing him to be married, shows that she was inclined to commit such acts. Evidence that she considered Session to be her boyfriend, that she hugged and kissed him, stayed overnight in his apartment, and he in hers, that she had been in bed with him partly clothed, is additional evidence of specific inclination, opportunity and intent. Such circumstantial evidence is sufficient to establish sexual intercourse with him. ( Roth v. Roth, 90 App. Div. 87, affd. 183 N.Y. 520; Cullen v. Cullen, 205 App. Div. 276, 18 Carmody-Wait 2d, New York Practice, § 114:130.) By respondent's admission she spent the weekend in Session's apartment during the month of August, the alleged month of conception. "The whole presents a situation where it is doubtful that any one man can be said with any degree of certainty to be the father." ( Matter of Rebmann v. Muldoon, 23 A.D.2d 163, 164; see, also, Matter of Sharon "C" v. David "D", 33 A.D.2d 603.) In our opinion the evidence is not sufficiently clear, convincing and satisfactory to sustain the order of filiation.