Opinion
November 10, 1986
Appeal from the Wayne County Family Court, Maas, J.
Present — Denman, J.P., Boomer, Green, Pine and Balio, JJ.
Order unanimously reversed on the law with costs, petition reinstated and matter remitted to Wayne County Family Court for further proceedings, in accordance with the following memorandum: Where a party moves, pursuant to CPLR 4401, to dismiss a proceeding at the conclusion of the petitioner's proof, the court is obliged to view the evidence most favorable to the nonmoving party and from that evidence and the inferences reasonably to be drawn therefrom, determine whether the trier of fact could find for the nonmoving party by any rational process (Wessel v Krop, 30 A.D.2d 764, 765). Questions of witness credibility are to be resolved in favor of the nonmoving party as well (Van Syckle v Powers, 106 A.D.2d 711, 713, lv denied 64 N.Y.2d 609). In our view, Family Court failed to apply properly this standard and the motion to dismiss should have been denied.
The presumption of legitimacy was adequately rebutted by the mother's testimony that she had intercourse solely with respondent during June and July of 1982, that she did not have sexual intercourse with her husband following their physical separation in February of 1982 and that she saw her husband once during June of 1982 when he came to the house and said "hi and good-bye" while exercising visitation away from the residence. Contrary to the findings of Family Court, there is no evidence in the record that the mother had intercourse with her husband once a week during July. Indeed the only indication in the record that she had intercourse with her husband at all during July was an equivocal response to a loaded question. At this stage, any inference to be drawn from that response should be viewed favorably to petitioner (see, Wessel v Krop, supra).
Given the testimony as to nonaccess, and considering the mother's testimony regarding sexual intercourse on two specific dates within the critical period as well as other sexual activity with respondent in July of 1982, her testimony that respondent admitted he was the father after the child's birth, the use of respondent's surname as part of the child's given name, and the results of two HLA tests indicating a 98.4% and 97.5% probability that the respondent is the father, we conclude that the petitioner made out a prima facie case of paternity (cf. Niagara County Dept. of Social Servs. v Powell, 120 A.D.2d 980; Matter of Duquette v Edward FF., 106 A.D.2d 694, lv denied 65 N.Y.2d 602; Matter of Wayne County Dept. of Social Servs. v Williams, 96 A.D.2d 724, affd 63 N.Y.2d 658).
We further conclude that the court abused its discretion when it precluded petitioner from calling the husband as a witness. Respondent's demand for the names and addresses of witnesses did not request the names of witnesses to nonaccess, there is no proof that petitioner deliberately withheld the husband's name or whereabouts to prevent discovery, and the likelihood that the husband would be a witness should not have come as a surprise to respondent (see, Family Ct Act § 531; Matter of Mannain v Lay, 33 A.D.2d 1024, affd 27 N.Y.2d 690). Upon continuation of the hearing, petitioner's case should be reopened to permit the testimony of the husband as to nonaccess.