Opinion
April 1, 1983
Appeal from the Erie County Family Court, Sedita, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Boomer and Schnepp, JJ.
Order unanimously reversed, on the law and facts, without costs, petition granted, and matter remitted to Erie County Family Court, for further proceedings in accordance with the following memorandum: Family Court erred in dismissing the petition in this filiation proceeding without making findings of fact ( Augustine v Tandle, 47 A.D.2d 710; see Matter of Hawthorne v Edward S., 31 A.D.2d 426, 428); nevertheless there is a sufficient record before us to make our own findings (see Matter of Espin v Pierce, 85 A.D.2d 503). Petitioner testified that she had sexual intercourse with respondent on a regular basis from May to November of 1977 and that she had not had sexual relations with anyone else during that period. The pregnancy was full term, the child weighing eight pounds, four ounces at its birth on August 4, 1978. Thus the period of conception must have been late October or early November. There is no proof of access by anyone else nor any rebuttal of petitioner's testimony that she was having sexual relations with respondent during that period. Respondent was present in the courtroom but failed to testify and thus the strongest inference can be drawn against him (see Matter of Bowling v Coney, 91 A.D.2d 1195; Matter of Commissioner of Social Servs. of Erie County v Simons, 87 A.D.2d 993; Matter of Jay v Andrew "Y", 48 A.D.2d 716). We thus find that respondent's paternity is established by clear and convincing evidence (see Matter of Commissioner of Social Servs. of Erie County v Simons, supra; Matter of Espin v Pierce, 85 A.D.2d 503, supra; Ferro v Bersani, 78 A.D.2d 1010) and remit the matter to Erie County Family Court for a hearing on the issue of support.