Adams v. Borrasca

Nov 9, 2001
Versions:288 A.D.2d 840
732 N.Y.S.2d 924
2001 N.Y. App. Div. LEXIS 10539

—Order unanimously reversed on the law without costs, motion denied, petition reinstated and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in granting respondent’s motion to dismiss the petition seeking a change in custody at the close of petitioner’s proof. It cannot be said here that the proof presented was such that a finding in favor of petitioner *841could not be made by any rational process (see, Nicholas v Reason, 84 AD2d 915). Furthermore, such a motion should not be granted where, as here, “resolution of disputed facts depends upon credibility determinations” (Fenton v Ives, 229 AD2d 704, 705). Thus, we reverse the order, deny respondent’s motion, reinstate the petition and remit the matter to Erie County Family Court for a new hearing. (Appeal from Order of Erie County Family Court, Szczur, J. — Custody.) Present — Pine, J. P., Hurl-butt, Scudder, Kehoe and Gorski, JJ.