Ferro v. Bersani

59 N.Y.2d 899 (1983)

Joan Ferro, Respondent, v. David Bersani, Appellant.

Court of Appeals of the State of New York.

Decided June 16, 1983.

Alan S. Hoffman for appellant.

Frank S. Kedzielawa for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur.

*900MEMORANDUM.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

There is an affirmed finding that respondent furnished support for the child, thus tolling the two-year limitation period established by the Family Court Act (§ 517, subd [a]; see Matter of Vicki B. v David H., 57 N.Y.2d 427). There is also a basis in the record for that finding. The limitations issue is, therefore, beyond our review (Laufer v Ostrow, 55 N.Y.2d 305, 311-312).

On the merits, we agree with the Appellate Division that paternity was established by clear and convincing evidence. The more particularly is this so because the Appellate Division's reference to respondent's failure to testify shows that it was free to and did draw "the strongest inference against [respondent] that the opposing evidence in the record permits" (Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 N.Y.2d 137).

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.