Aruti v. Aruti

88 A.D.3d 700, 930 N.Y.2d 481

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 2011
• Status: Published

Opinion

A family offense must be established by a fair preponderance of the evidence (see Family Ct Act § 832; Matter of Hasbrouck v Hasbrouck, 59 AD3d 621 [2009]). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of Pearlman v Pearlman, 78 AD3d 711, 712 [2010]; Matter of Fleming v Fleming, 52 AD3d 600 [2008]; Matter of Rivera v Quinones-Rivera, 15 AD3d 583 [2005]; Matter of King v Flowers, 13 AD3d 629 [2004]; Matter of Topper v Topper, 271 AD2d 613 [2000]).

Here, the petitioner failed to establish by a preponderance of the evidence that the respondent committed acts constituting a cognizable family offense (see Family Ct Act § 812 [1]; § 832; Matter of Ann P. v Nicholas C.P., 44 AD3d 776 [2007]; Matter of London v Blazer, 2 AD3d 860, 861 [2003]). Since the allegations in the petition were not established, the Family Court properly, in effect, denied the petition and dismissed the proceeding (see Family Ct Act § 841 [a]; Matter of Hasbrouck v Hasbrouck, 59 AD3d at 622; Matter of King v Flowers, 13 AD3d 629 [2004]; Matter of Garland v Garland, 3 AD3d 496 [2004]). Mastro, J.E, Florio, Eng and Sgroi, JJ., concur.