Matter of Alessio v Burch

Matter of Alessio v Burch 2010 NY Slip Op 08308 [78 AD3d 1620] November 12, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of Jennifer Alessio, Appellant, v Harold Burch, Respondent.

—[*1] Alan Birnholz, East Amherst, for petitioner-appellant.

Appeal from an order of the Family Court, Erie County (Rosalie Bailey, J.), entered November 19, 2009 in a proceeding pursuant to Family Court Act article 8. The order dismissed the petition.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Erie County, for a new hearing on the petition.

Memorandum: Petitioner appeals from an order dismissing her family offense petition pursuant to Family Court Act article 8 based on Family Court's determination that petitioner's testimony at the hearing on the petition was not credible. We agree with petitioner that, because the transcript of the hearing includes only one page of her direct examination, meaningful appellate review of the pivotal basis for the court's determination, i.e., that petitioner was not credible, is not possible (see Matter of White v Fischer, 73 AD3d 1372, 1373 [2010]; see also Matter of Cobrin [Telecom Consulting Group NE Corp.—Commissioner of Labor], 36 AD3d 1166, 1166-1167 [2007]). We therefore are compelled to reverse the order and remit the matter for a new hearing on the petition (see Weckstein v Breitbart, 111 AD2d 6, 8 [1985]; see generally Matter of Jordal v Jordal, 193 AD2d 1102 [1993]). Present—Martoche, J.P., Centra, Carni, Lindley and Pine, JJ.