Matter of Diaz v. Rodriguez

2018 NY Slip Op 6091

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 2018
• Docket: 2018-01872
• Status: Published

Opinion

Matter of Diaz v Rodriguez (2018 NY Slip Op 06091)

Matter of Diaz v Rodriguez

2018 NY Slip Op 06091

Decided on September 19, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 19, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.

2018-01872
(Docket No. O-3347-17)

[*1]In the Matter of Noely Diaz, appellant,

v

Gus Rodriguez, respondent.

Larry S. Bachner, New York, NY, for appellant.

Ruiz Law Group, P.C., Jackson Heights, NY (Frances Ruiz of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an amended order of the Family Court, Queens County (Marilyn L. Zarrello, Ct. Atty. Ref.), dated January 17, 2018. The amended order, after a hearing, denied the family offense petition and dismissed the proceeding.

ORDERED that the amended order is affirmed, without costs or disbursements.

The petitioner filed a family offense petition alleging, inter alia, that her uncle, the respondent, had committed the family offenses of harassment in the second degree, menacing in the third degree, and disorderly conduct. After a hearing, the Family Court denied the petition and dismissed the proceeding. The petitioner appeals.

The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Tulshi v Tulshi, 118 AD3d 716; Matter of Jarrett v Jarrett, 102 AD3d 695; Matter of Scanziani v Hairston, 100 AD3d 1007). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's findings regarding the credibility of witnesses are entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Tulshi v Tulshi, 118 AD3d at 716; Matter of Pearlman v Pearlman, 78 AD3d 711, 712; Matter of Gray v Gray, 55 AD3d 909).

The Family Court's determination that the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent committed the family offenses alleged in the petition hinged on issues of credibility and is supported by the record (see Matter of Giresi-Palazzolo v Palazzolo, 127 AD3d 752). Accordingly, we find no basis to disturb the court's determination.

RIVERA, J.P., CHAMBERS, BARROS and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court