Straight v. Grant

184 A.D.3d 647

123 N.Y.S.3d 532 (Mem)

In the Matter of Tasha STRAIGHT, Appellant,

v.John H. GRANT, Respondent.

2019–11232

Docket No. O–14257–17

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

Submitted - May 14, 2020

June 10, 2020

Lauri Gennusa, Jamaica, NY, for appellant.

Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Ann E. O'Shea, J.), dated September 10, 2019. The order, after a fact-finding hearing, in effect, denied the family offense petition and dismissed the proceeding.

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

In May 2017, the petitioner commenced this family offense proceeding, alleging, inter alia, that the respondent committed the family offenses of disorderly conduct, harassment in the second degree, assault in the second or third degree, and menacing in the second degree. After a fact-finding hearing, the Family Court determined that the petitioner failed to establish by a preponderance of the evidence that the respondent committed a family offense against the petitioner and, in effect, denied the petition and dismissed the proceeding. 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 (see Family Ct Act § 832 ; Matter of Mohammed v. Mohammed, 174 A.D.3d 615, 615, 101 N.Y.S.3d 884 ). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of McGregor v. Ferguson, 167 A.D.3d 897, 88 N.Y.S.3d 342 ). Where, as here, "the court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination will not be disturbed unless clearly unsupported by the record" ( Matter of Mohammed v. Mohammed, 174 A.D.3d at 615–616, 101 N.Y.S.3d 884 ).

Here, the Family Court's determination was based upon its credibility assessments and is supported by the record (see id. at 616, 101 N.Y.S.3d 884 ; Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 717, 986 N.Y.S.2d 350 ). Accordingly, there is no basis to disturb the court's determination that the petitioner failed to prove by a preponderance of the...