Opinion
September 23, 1993
Appeal from the Family Court of Otsego County (Nydam, J.).
Petitioner commenced this proceeding to establish that respondent was the father of a child born out of wedlock to Debby UU. (hereinafter the mother). Family Court granted the petition, prompting this appeal by respondent.
We reject respondent's contention that petitioner failed to meet its burden of proving paternity by clear and convincing evidence (see, Matter of Erin Y. v Frank Z., 163 A.D.2d 636). The medical evidence revealed that the child's birth was the result of a full-term pregnancy and established mid-August 1990 as the date of conception. The results of a human leucocyte antigen test revealed a probability of respondent's paternity at 99.94%. At the hearing the mother testified that she and respondent began going out in July 1990 and engaged in intercourse from that point on until September 1990. No birth control was used. This testimony, combined with the medical evidence established a pregnancy within the normal gestational period (see, Matter of Case v Robert EE., 167 A.D.2d 567), was sufficient, if believed, to support a finding of paternity (see, Matter of Erin Y. v Frank Z., supra). To the extent that there were any inconsistencies, they did not undermine the mother's testimony, especially in light of the convincing evidence of respondent's paternity (see, Matter of Pandozy v Bruce VV., 136 A.D.2d 841; Matter of Moon [Roscoe CC.], 105 A.D.2d 485). In addition, the fact that the mother admitted that she had protected intercourse with another man on one occasion in July 1990 was not necessarily fatal to the paternity proceeding (see, Matter of Amy J. v Brian K., 161 A.D.2d 1022; cf., Matter of Jane PP. v Paul QQ., 65 N.Y.2d 994). This raised questions of credibility for Family Court to resolve and on the record before us we cannot say, as a matter of law, that the court erred in crediting the mother's testimony (see, Matter of Commissioner of Saratoga County Dept. of Social Servs. v David Z., 133 A.D.2d 882).
We also reject respondent's argument that Family Court erred in issuing an amended order. The court had initially dismissed the petition but "[u]pon a closer analysis of the existing law", vacated its previous order and granted the petition. The court acted well within its authority and we find nothing improper in the procedure used to amend the first order (see, CPLR 4404 [b]). Respondent's remaining arguments have been considered and rejected as unpersuasive.
Mikoll, J.P., Yesawich Jr., Crew III and Casey, JJ., concur. Ordered that the amended order is affirmed, without costs.