Espin v. Pierce

Markewich and Bloom, JJ., dissent in part in a memorandum by Bloom, J., as follows:

We recognize that the photographs taken by petitioner showing respondent with the child alleged to have been fathered by him is some evidence tending to establish paternity. Standing alone, however, we think it insufficient to warrant the conclusion that paternity was demonstrated by clear, convincing and satisfactory proof. The balance of the evidence submitted in support of petitioner’s claim was sharply controverted and the determination by the trial court necessarily hinged on credibility. In these circumstances we think it was incumbent upon the trial court, which viewed the witnesses, observed their demeanor and heard their testimony to be singularly sensitive to the requirements of CPLR 4213 (subd [b]) so that we would be made aware of its findings on the issue of credibility. Its failure to “state the facts it deems essential” and the basis for its decision leads us to the conclusion that this appeal should be held in abeyance and the matter remanded for findings and conclusions, as required by CPLR 4213 (subd [b]).