Bunin v. Bunin

187 A.D.3d 1183

131 N.Y.S.3d 229 (Mem)

In the Matter of Michael BUNIN, appellant,

v.Ivan BUNIN, respondent.

2018–13263

Docket No. O–5506–18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 29, 2020

October 28, 2020

Tammi D. Pere, Jamaica, NY, for appellant.

Louisa Floyd, Brooklyn, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Mildred T. Negron), dated October 15, 2018. The order, after a hearing, in effect, denied the family offense petition and dismissed the proceeding.

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

In 2018, the petitioner commenced this family offense proceeding against the respondent, his father, alleging that he had committed acts constituting, among other things, the family offense of harassment in the second degree. Following a hearing, the Family Court, in effect, denied the petition and dismissed the proceeding, concluding that the petitioner failed to establish that the respondent committed a family offense. The petitioner appeals.

"In a family offense proceeding, the petitioner has the burden of establishing the family offense by a fair preponderance of the evidence" ( Matter of Straight v. Grant, 184 A.D.3d 647, 648, 123 N.Y.S.3d 532 ; see Family Ct Act § 832 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court's determination regarding the credibility of witnesses must be given great weight on appeal unless clearly unsupported by the record" ( Matter of Edwards v. Cotton, 185 A.D.3d 584, 585, 124 N.Y.S.3d 832 ).

We agree with the Family Court's determination, after the hearing, that the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent committed a family offense. The petitioner failed to adduce evidence that would support a finding that the respondent engaged in a course of conduct or repeatedly committed acts that alarmed or seriously annoyed the petitioner and that served no legitimate purpose (see Penal Law § 240.26[3] ] ).

To the extent that the petitioner claims that the respondent committed the crime of unlawful imprisonment, that crime is not the proper subject of a family offense proceeding since it is not one of the crimes listed in Family Court Act §...