Matter of Nunez v Diaz

Matter of Nunez v Diaz 2016 NY Slip Op 08364 Decided on December 14, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 14, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2015-12383
(Docket No. O-25371/14)

[*1]In the Matter of Virgilia Nunez, appellant,

v

Joseph Diaz, respondent.

Elliot Green, Brooklyn, NY, for appellant.

DECISION & ORDER

Appeal by the petitioner from an order of disposition the Family Court, Kings County (Dean T. Kusakabe, J.), dated July 10, 2015. The order of disposition, after a hearing, dismissed the petitioner's family offense petition.

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

The petitioner commenced this proceeding pursuant to Family Court Act article 8 alleging that the respondent was her nephew and that he committed various family offenses against her. After a hearing, the Family Court dismissed the petition. The petitioner appeals.

"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, quoting Family Ct Act § 832; see Matter of Batista v Iqbal, 128 AD3d 1063; Matter of Cole v Muirhead, 125 AD3d 964). "The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court" (Matter of Creighton v Whitmore, 71 AD3d 1141, 1141; see Family Ct Act §§ 812, 832; Matter of Marte v Caraballo, 116 AD3d 1050). The hearing 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 (see Matter of Maiorino v Maiorino, 107 AD3d 717).

Here, the petitioner failed to establish, by a fair preponderance of the evidence, that the conduct committed by the respondent in 2012 and 2014 constituted the family offense of harassment in the second degree or disorderly conduct (see Family Ct Act § 812[1]; Penal Law §§ 240.26, 240.20; Matter of Little v Renz, 137 AD3d 916; Matter of Marte v Caraballo, 116 AD3d 1050; Matter of Shiffman v Handler, 115 AD3d 753). Accordingly, the Family Court properly dismissed the petition.

BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court