Murray-Caines v. Caines

2017 NY Slip Op 4549, 151 A.D.3d 487, 53 N.Y.S.3d 533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2017
• Docket: 76236/13 4199 4198
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about February 24, 2016, which, after a hearing, among other things, dismissed plaintiff wife’s petition seeking an order of protection; and order, same court and Justice, entered on or about September 26, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiff’s CPLR 4404 (b) motion to set aside the prior order, unanimously affirmed, without costs.

The Family Court properly determined that the allegations in the petition are not supported by a fair preponderance of the evidence (see Family Ct Act § 832; Matter of Everett C. v Oneida P., 61 AD3d 489 [1st Dept 2009]). The court stated that it had reached its determination following completion of the hearing and upon consideration of both parties’ testimony (cf. Matter of Janice M. v Terrance J., 96 AD3d 482 [1st Dept 2012] [consideration of the petitioner’s credibility was improper on a motion to dismiss the petition for failure to prove a prima facie case]). There is no basis for disturbing the court’s determination that plaintiff’s testimony was not credible (see Matter of Everett C. v Oneida P., 61 AD3d 489 [2009]), particularly given the evidence of plaintiff’s motive to have defendant barred from the marital residence.

The Family Court properly granted defendant’s prehearing application to limit plaintiff’s proof to the allegations in the petition (see Matter of Czop v Czop, 21 AD3d 958, 959 [2d Dept 2005]; see also Matter of Salazar v Melendez, 97 AD3d 754 [2d Dept 2012], lv denied 20 NY3d 852 [2012]).

We have considered plaintiff’s remaining arguments and find them unavailing.

Concur—Tom, J.P., Sweeny, Andrias, Moskowitz and Manzanet-Daniels, JJ.