Streat v. Streat

117 A.D.3d 837, 985 N.Y.S.2d 720

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 2014
• Docket: Docket No. O-19444-12
• 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, Queens County (Lebwohl, J.), dated April 15, 2013, which, after a hearing, denied the petition 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 Testa v Strickland, 99 AD3d 917, 917 [2012]). “ ‘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 Yalvac v Yalvac, 83 AD3d 853, 854 [2011]; Matter of Halper v Halper, 61 AD3d 687 [2009]; Matter of Lallmohamed v Lallmohamed, 23 AD3d 562 [2005]), “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 Yalvac v Yalvac, 83 AD3d at 854; Matter of Robbins v Robbins, 48 AD3d 822, 822 [2008]; Matter of Phillips v Laland, 4 AD3d 529, 530 [2004]).

Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent committed the family offense of harassment in the second degree. 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 Alonso v Perdue, 112 AD3d 920, 920 [2013]; Matter of Amato v Amato, 100 AD3d 988, 989 [2012]; Matter of Sepulveda v Perez, 90 AD3d 1057, 1058 [2011]; Matter of DosReis v Rousseau, 85 AD3d 1028, 1028 [2011]; Matter of Richardson v Richardson, 80 AD3d 32, 44 [2010]; Matter of Luke v Luke, 72 AD3d 689, 689 [2010]).

The petitioner’s remaining contentions are without merit.

Accordingly, the Family Court properly denied the petition and dismissed the proceeding.

Dickerson, J.E, Leventhal, Hall and Lott, JJ., concur.