Matter of Cole v. Muirhead

Appellate Division of the Supreme Court of New York

Matter of Cole v. Muirhead

125 A.D.3d 964, 5 N.Y.S.3d 178

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 2015

Docket2014-05273

StatusPublished

Cited by5 cases

This text of 125 A.D.3d 964 (Matter of Cole v. Muirhead) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Cole v. Muirhead, 125 A.D.3d 964, 5 N.Y.S.3d 178 (N.Y. Ct. App. 2015).

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Opinion

Appeal from an order of the Family Court, Queens County (Ronald E. Richter, J.), dated April 8, 2014. The order, after a hearing, denied the family offense petition for failure to prove a family offense by a preponderance of the evidence, and dismissed the proceeding.

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

“In a family offense proceeding, the petitioner has the burden of establishing, by a ‘fair preponderance of the evidence,’ that the charged conduct was committed as alleged in the petition” (Matter of Cassie v Cassie, 109 AD3d 337, 340 [2013], quoting Family Ct Act § 832; see Matter of Blackett v Blackett, 123 AD3d 923 [2014]; Matter of Streat v Streat, 117 AD3d 837, 837 [2014]). “ The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court’ ” (Matter of Kaur v Singh, 73 AD3d 1178, 1178 [2010], quoting Matter of Creighton v Whitmore, 71 AD3d 1141, 1141 [2010]; see Family Ct Act §§ 812, 832; Matter of Blackett v Blackett, 123 AD3d at 923), “whose ‘determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record’ ” (Matter of Kaur v Singh, 73 AD3d at 1178, quoting Matter of Creighton v Whitmore, 71 AD3d at 1141; see Matter of Blackett v Blackett, 123 AD3d at 923; Matter of Tulshi v Tulshi, 118 AD3d 716 [2014]).

Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent committed the subject family offenses. The Family Court’s determination that the petitioner failed to establish that a family offense was committed against her was based on its credibility assessments, and is supported by the record (see Matter of Blackett v Blackett, 123 AD3d at 923; Matter of Streat v Streat, 117 AD3d at 838).

Accordingly, the Family Court properly denied the petition and dismissed the proceeding. Rivera, J.P., Austin, Roman and Barros, JJ., concur.

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Appeal from an order of the Family Court, Queens County (Ronald E. Richter, J.), dated April 8, 2014. The order, after a hearing, denied the family offense petition for failure to prove a family offense by a preponderance of the evidence, and dismissed the proceeding.

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

“In a family offense proceeding, the petitioner has the burden of establishing, by a ‘fair preponderance of the evidence,’ that the charged conduct was committed as alleged in the petition” (Matter of Cassie v Cassie, 109 AD3d 337, 340 [2013], quoting Family Ct Act § 832; see Matter of Blackett v Blackett, 123 AD3d 923 [2014]; Matter of Streat v Streat, 117 AD3d 837, 837 [2014]). “ The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court’ ” (Matter of Kaur v Singh, 73 AD3d 1178, 1178 [2010], quoting Matter of Creighton v Whitmore, 71 AD3d 1141, 1141 [2010]; see Family Ct Act §§ 812, 832; Matter of Blackett v Blackett, 123 AD3d at 923), “whose ‘determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record’ ” (Matter of Kaur v Singh, 73 AD3d at 1178, quoting Matter of Creighton v Whitmore, 71 AD3d at 1141; see Matter of Blackett v Blackett, 123 AD3d at 923; Matter of Tulshi v Tulshi, 118 AD3d 716 [2014]).

Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent committed the subject family offenses. The Family Court’s determination that the petitioner failed to establish that a family offense was committed against her was based on its credibility assessments, and is supported by the record (see Matter of Blackett v Blackett, 123 AD3d at 923; Matter of Streat v Streat, 117 AD3d at 838).

Accordingly, the Family Court properly denied the petition and dismissed the proceeding. Rivera, J.P., Austin, Roman and Barros, JJ., concur.

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125 A.D.3d 964, 5 N.Y.S.3d 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-cole-v-muirhead-nyappdiv-2015.

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