Matter of Aslan v. Senturk

125 A.D.3d 852, 1 N.Y.S.3d 827

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 2015
• Docket: 2013-07048
• Status: Published

Opinion

Motion by the appellant for leave to reargue an appeal from an order of the Family Court, Richmond County, dated June 10, 2013, which was determined by decision and order of this Court dated April 23, 2014.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is granted and, upon reargument, the decision and order of this Court dated April 23, 2014 (Matter of Aslan v Senturk, 116 AD3d 952 [2014]), is recalled and vacated, and the following decision and order is substituted therefor:

Appeal from an order of the Family Court, Richmond County (Lisa Aschkenasy, Ct. Atty. Ref.), dated June 10, 2013. The order, after a hearing, in effect, denied the family offense petition and dismissed the proceeding.

Ordered that the order is affirmed, without costs or disbursements.

The allegations in a family offense proceeding must be “supported by a fair preponderance of the evidence” (Family Ct Act § 832). “The determination of whether a family offense was committed is a factual issue to be resolved by the [trial] [c]ourt, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record” (Matter of Richardson v Richardson, 80 AD3d 32, 43-44 [2010]; see Matter of Tulshi v Tulshi, 118 AD3d 716 [2014]).

Here, the petitioner filed a family offense petition alleging, among other things, that the respondent had committed the family offenses of harassment in the second degree and stalk ing in the second degree. The determination of the Family-Court that the petitioner failed to establish, by a preponderance of the evidence, that the respondent committed a family offense hinged on issues of credibility, and is supported by the record (see Matter of Tulshi v Tulshi, 118 AD3d 716 [2014]; Matter of Velazquez v Haffey, 113 AD3d 783 [2014]). Accordingly, we find no basis to disturb the Family Court’s determination, in effect, denying the petition and dismissing the proceeding.

Rivera, J.R, Leventhal, Hinds-Radix and Maltese, JJ., concur.