Opinion
01-25-2017
In the Matter of Everette JOHNSON, appellant, v. Gary JOHNSON, respondent.
Olga J. Rodriguez, Forest Hills, NY, for appellant. Linda C. Braunsberg, Staten Island, NY, for respondent.
Olga J. Rodriguez, Forest Hills, NY, for appellant.
Linda C. Braunsberg, Staten Island, NY, for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Appeal by the petitioner from an order of the Family Court, Queens County (Anne–Marie Jolly, J.), dated October 5, 2015. The order, after a hearing, in effect, denied the petitioner's family offense petition and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, his brother, alleging, inter alia, that the respondent committed the family offenses of assault in the third degree, harassment in the second degree, and disorderly conduct. After a hearing, the Family Court, in effect, denied the petition and dismissed the proceeding.
The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" (Family Ct Act § 832 ; see Matter of Davis v. Wright, 140 A.D.3d 753, 754, 30 N.Y.S.3d 923 ; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d 752, 752, 7 N.Y.S.3d 222 ; Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 716, 986 N.Y.S.2d 350 ; Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record" (Matter of Richardson v. Richardson, 80 A.D.3d 32, 43–44, 910 N.Y.S.2d 149 ; see Matter of Davis v. Wright, 140 A.D.3d at 754, 30 N.Y.S.3d 923; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d at 752, 7 N.Y.S.3d 222 ; Matter of Tulshi v. Tulshi, 118 A.D.3d at 716, 986 N.Y.S.2d 350 ; Matter of Bah v. Bah, 112 A.D.3d 921, 922, 978 N.Y.S.2d 301 ).
Here, the Family Court properly determined that the petitioner failed to establish, by a preponderance of the evidence, that the respondent committed a family offense (see Matter of Graham v. Rawley, 140 A.D.3d 765, 767–768, 33 N.Y.S.3d 371 ; Matter of Davis v. Wright, 140 A.D.3d at 754, 30 N.Y.S.3d 923; Matter of Bah v. Bah, 112 A.D.3d at 922, 978 N.Y.S.2d 301 ; Matter of Richardson v. Richardson, 80 A.D.3d at 44, 910 N.Y.S.2d 149 ). The court's credibility determination is supported by the record, and we discern no basis for disturbing it (see Matter of Davis v. Wright, 140 A.D.3d at 754, 30 N.Y.S.3d 923; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d at 752, 7 N.Y.S.3d 222 ; Matter of Tulshi v. Tulshi, 118 A.D.3d at 716, 986 N.Y.S.2d 350 ; Matter of Bah v. Bah, 112 A.D.3d at 922, 978 N.Y.S.2d 301 ; Matter of Richardson v. Richardson, 80 A.D.3d at 44, 910 N.Y.S.2d 149 ). Accordingly, the court properly, in effect, denied the petition and dismissed the proceeding.