Stephens v. Stephens

106 A.D.3d 748, 964 N.Y.S.2d 912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2013
• Status: Published

Opinion

—In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Shafer, J.H.O.), dated April 13, 2012, which, upon the granting of the respondent’s motion, made at the close of the petitioner’s case, to dismiss the petition for failure to establish a prima facie case, dismissed the petition.

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

“In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom. The question of credibility is irrelevant, and should not be considered” (Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999] [citations omitted]; see Matter of Mamantov v Mamantov, 86 AD3d 540, 541 [2011]; Matter of Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2010]).

Contrary to the petitioner’s contention, accepting the evidence preferred in support of the petition as true and giving it the benefit of every reasonable inference, it failed to establish, prima facie, that the respondent committed the family offense of harassment in the second degree (see Matter of Mamantov v Mamantov, 86 AD3d at 541; Matter of Sellers v Sellers-Boykin, 72 AD3d 832 [2010]). Dillon, J.P., Chambers, Hall and Hinds-Radix, JJ., concur.