Opinion
2019–02576 Docket No. O–1821–16
02-19-2020
In the Matter of Karlene Alana JOSEPH, Appellant, v. Karl JOSEPH, Respondent.
Daniel E. Lubetsky, Jamaica, NY, for appellant. Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent.
Daniel E. Lubetsky, Jamaica, NY, for appellant.
Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Robert D. Mulroy, J.), dated February 8, 2019. The order, after a fact-finding hearing, denied the family offense petition 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 the offense by a fair preponderance of the evidence (see Family Ct Act § 832 ; Matter of Grouzis v. Grouzis, 176 A.D.3d 936, 936–937, 108 N.Y.S.3d 367 ; Matter of Estime v. Civil, 168 A.D.3d 936, 937, 90 N.Y.S.3d 557 ; Matter of McGregor v. Ferguson, 167 A.D.3d 897, 897, 88 N.Y.S.3d 342 ; Matter of Lopez de Salmon v. Salmon, 150 A.D.3d 1121, 1122, 52 N.Y.S.3d 638 ). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of Grouzis v. Grouzis, 176 A.D.3d at 937, 108 N.Y.S.3d 367 ; Matter of Estime v. Civil, 168 A.D.3d at 937, 90 N.Y.S.3d 557 ; Matter of McGregor v. Ferguson, 167 A.D.3d at 897, 88 N.Y.S.3d 342 ; Matter of Marte v. Biondo, 104 A.D.3d 947, 947–948, 960 N.Y.S.2d 914 ). Where, as here, "a hearing court ‘was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony’ of one party over that of the other, its determination [should] not be disturbed" unless clearly unsupported by the record ( Matter of Henderson v. Henderson, 137 A.D.3d 911, 912, 27 N.Y.S.3d 183, quoting Matter of Musheyev v. Musheyev, 126 A.D.3d 800, 801, 2 N.Y.S.3d 807 ; see Matter of Grouzis v. Grouzis, 176 A.D.3d at 937, 108 N.Y.S.3d 367 ; Matter of Diaz v. Rodriguez, 164 A.D.3d 1340, 81 N.Y.S.3d 756 ; Matter of Davis v. Felder, 140 A.D.3d 752, 753, 30 N.Y.S.3d 922 ; Matter of Saldivar v. Cabrera, 109 A.D.3d 831, 832, 971 N.Y.S.2d 310 ).
Here, the petitioner filed a family offense petition alleging, inter alia, that the respondent, the petitioner's brother, had committed the family offenses of disorderly conduct and harassment in the second degree. The Family Court's determination that the petitioner failed to establish, by a preponderance of the evidence, that the respondent committed the family offenses of disorderly conduct and harassment in the second degree hinged on issues of credibility and is supported by the record (see Matter of Diaz v. Rodriguez, 164 A.D.3d 1340, 81 N.Y.S.3d 756 ; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d 752, 7 N.Y.S.3d 222 ; Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 717, 986 N.Y.S.2d 350 ).
Furthermore, under the circumstances of this case, the Family Court did not improvidently exercise its discretion in denying the petitioner's request to adjourn the fact-finding hearing to allow her son to testify as a rebuttal witness (see Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ).
Accordingly, we find no basis to disturb the Family Court's determination denying the petition and dismissing the proceeding.
RIVERA, J.P., BALKIN, LEVENTHAL and CONNOLLY, JJ., concur.