Trela v. Ardito

213 A.D.3d 859

183 N.Y.S.3d 545

In the Matter of Marta M. TRELA, appellant,

v.Joseph ARDITO, respondent.

2022–00427

Docket No. O–16333–19

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

Submitted—January 24, 2023

February 15, 2023

Peter Wilner, Jamaica, NY, for appellant.

Joseph Ardito, Ozone Park, NY, respondent pro se.

COLLEEN D. DUFFY, J.P., PAUL WOOTEN, WILLIAM G. FORD, LILLIAN WAN, 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 (Elizabeth L. Fassler, J.), dated January 5, 2022. The order, after a hearing, in effect, denied the petition and dismissed the proceeding.

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

The petitioner commenced this family offense proceeding against the respondent alleging, among other things, that during the course of their intimate relationship, which lasted several years, the respondent subjected the petitioner to physical and mental abuse. The petitioner further alleged that after this intimate relationship ended, the respondent engaged in behavior constituting harassment. After a hearing, the Family Court, in effect, denied the petition and dismissed the proceeding. The petitioner appeals.

A petitioner in a family offense proceeding has the burden of establishing the alleged offense by a fair preponderance of the evidence (see Family Ct Act § 832 ; Matter of Mansour v. Mahgoub, 202 A.D.3d 961, 162 N.Y.S.3d 475 ). The determination as to whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of Marin v. Banasco, 203 A.D.3d 924, 161 N.Y.S.3d 834 ). The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record (see Matter of Karen P. v. Alvin P., 210 A.D.3d 1097, 177 N.Y.S.3d 495 ).

Here, presented with conflicting accounts regarding the petitioner's allegations, the Family Court chose to credit the testimony of the respondent over the testimony of the petitioner, which credibility determinations are supported by the record (see Matter of Pieters v. Pieters, 208 A.D.3d 1329, 174 N.Y.S.3d 603 ). Accordingly, we find no basis to disturb the court's determination, in effect, denying the petition and dismissing the proceeding.

DUFFY, J.P., WOOTEN, FORD and WAN, JJ., concur.