Opinion
October 4, 1991
Appeal from the Cattaraugus County Family Court, Trost, J.H.O.
Present — Callahan, A.P.J., Denman, Pine, Balio and Lawton, JJ.
Order unanimously reversed on the law and the facts without costs, petition granted and matter remitted to Cattaraugus County Family Court for further proceedings, in accordance with the following Memorandum: Family Court erred in dismissing the petition in this paternity proceeding without making findings of fact (see, Matter of Commissioner of Social Servs. of County of Erie v Michel, 93 A.D.2d 997; see also, Augustine v Tandle, 47 A.D.2d 710). Nonetheless, there is a sufficient record before us to allow us to make the necessary findings (see, Matter of Commissioner of Social Servs. of County of Erie v Michel, supra; see also, Matter of Espin v Pierce, 85 A.D.2d 503). On March 27, 1989, Bowen gave birth to a son after a full-term pregnancy. Thus, the period of conception was late June or early July 1988. Bowen testified that she had sexual intercourse with respondent on several occasions in June and July 1988. Respondent was present at the hearing before the Judicial Hearing Officer but failed to testify. We may infer, therefore, that he and Bowen did engage in sexual intercourse during the period of conception (see, Matter of Jane PP. v Paul QQ., 65 N.Y.2d 994, 996; see also, Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d 137, 141). Although Bowen admitted to having had sexual intercourse with two other men during the possible period of conception, HLA tests excluded the possibility that either was the child's father. Moreover, an HLA test result established a 97.5% probability that respondent was the child's father. We find, therefore, that respondent's paternity is established by clear and convincing evidence (see, Matter of Commissioner of Saratoga County Dept. of Social Servs. v David Z., 133 A.D.2d 882; Matter of Constance G. v Herbert Lewis L., 119 A.D.2d 209; Matter of Julie UU. v Joseph VV., 108 A.D.2d 1038; see also, Matter of Commissioner of Social Servs. of County of Erie v Michel, supra; cf., Matter of Jane PP. v Paul QQ., supra), and we remit the matter to Cattaraugus County Family Court for a hearing on the issue of support.