Matter of Cole v. Muirhead

Feb 25, 2015
2014-05273
Versions:125 A.D.3d 964
5 N.Y.S.3d 178
2015 NY Slip Op 01632

Appeal from an order of the Family Court, Queens County (Ronald E. Richter, J.), dated April 8, 2014. The order, after a hearing, denied the family offense petition for failure to prove a family offense by a preponderance of the evidence, 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 Blackett v Blackett, 123 AD3d 923 [2014]; Matter of Streat v Streat, 117 AD3d 837, 837 [2014]). “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 Blackett v Blackett, 123 AD3d at 923), “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 Blackett v Blackett, 123 AD3d at 923; Matter of Tulshi v Tulshi, 118 AD3d 716 [2014]).

Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent committed the subject family offenses. 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 Blackett v Blackett, 123 AD3d at 923; Matter of Streat v Streat, 117 AD3d at 838).

Accordingly, the Family Court properly denied the petition and dismissed the proceeding. Rivera, J.P., Austin, Roman and Barros, JJ., concur.