
    In the Matter of Lorraine Hanley, as Deputy Commissioner of the Oneida County Department of Social Services, Appellant, v Edward Jackson, Respondent.
   Order affirmed, without costs. All concur, except Dillon, P. J., and Witmer, J., who dissent and vote to reverse the order and grant the petition, in the following memorandum.

Dillon, P. J., and Witmer, J. (dissenting).

The evidence establishes that respondent and the complaining witness, Miss Zakala, had been friends since July, 1972 and had frequently engaged in sexual intercourse. A child was born to her on April 17, 1977. She testified that she and respondent had sexual relations three or four times per month from April to October, 1976 and that she had no sexual relations with any other man in 1976. She testified that she had a menstrual period in early July, 1976, and that she had intercourse with respondent on the night of July 17, 1976. Respondent did not dispute that he had sexual relations with Miss Zakala on many occasions during 1976, and he offered no evidence to question her testimony that she had no intercourse with any other man in 1976. His only defense was to deny that he had relations with-her on July 17, 1976, an occasion when Miss Zakala testified that he and she did have relations. He testified that at that time he and a friend, within the hour, had just left to travel to West Point for military duty and so, he contends, he could not have had relations with her on that occasion and thus could not be the father of her child. Respondent admitted calling on Miss Zakala and the baby in the hospital, admitted buying a present for the baby and admitted holding the baby on an occasion several months later. Indeed, a picture was introduced showing him holding the baby. In our view petitioner, by clear and convincing evidence, has established that respondent is the father of this child, that the trial court erred in dismissing the petition; and that the order should be reversed, the petition granted and an order entered determining that respondent is the father of this child. (Appeal from order of Oneida County Family Court—paternity.) Present—Dillon, P. J., Cardamone, Doerr, Witmer and Moule, JJ.  