Opinion
2017–08266 Docket No. O–4583–17
04-18-2018
In the Matter of Philip VELLA, respondent, v. Jodi DILLMAN, appellant.
Arza Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for appellant.
Arza Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for appellant.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In a family offense proceeding, Jodi Dillman appeals from an order of protection of the Family Court, Suffolk County (Bernard Cheng, J.), dated July 19, 2017. The order, upon a finding, made after a hearing, that the appellant committed the family offense of harassment in the second degree directed her, inter alia, to stay away from the petitioner until and including July 19, 2018.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner filed a family offense petition in Family Court seeking an order of protection against the appellant, who is his ex-girlfriend. Following fact-finding and dispositional hearings, the Family Court determined that the appellant had committed the family offense of harassment in the second degree and issued an order of protection directing her, inter alia, to stay away from the petitioner until and including July 19, 2018.
The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" ( Family Ct. Act § 832 ; see Matter of Porter v. Moore, 149 A.D.3d 1082, 1083, 53 N.Y.S.3d 174 ; Matter of Acevedo v. Acevedo, 145 A.D.3d 773, 774, 43 N.Y.S.3d 443 ; Matter of Silva v. Silva, 125 A.D.3d 869, 870, 1 N.Y.S.3d 848 ). "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 Shank v. Shank , 155 A.D.3d 875, 876, 63 N.Y.S.3d 719 ; Matter of Fuel v. Chaca , 150 A.D.3d 1231, 1232, 52 N.Y.S.3d 886; Matter of Nusbaum v. Nusbaum , 59 A.D.3d 725, 725, 874 N.Y.S.2d 378 ). Here, the Family Court was presented with conflicting testimony as to whether the appellant committed the family offense of harassment in the second degree. The court's determination that the appellant had committed that family offense was based upon its assessment of the credibility of the parties and is supported by the record (see Matter of Streat v. Streat, 117 A.D.3d 837, 838, 985 N.Y.S.2d 720 ; Matter of Winfield v. Gammons, 105 A.D.3d 753, 754, 963 N.Y.S.2d 272 ; Matter of Luke v. Luke, 72 A.D.3d 689, 689, 897 N.Y.S.2d 655 ).
Contrary to the appellant's contention, the Family Court did not improvidently exercise its discretion in denying her belated application for a continuance in order to secure the attendance of a certain witness. " ‘An application for a continuance or adjournment is addressed to the sound discretion of the [hearing] court, and the grant or denial thereof will be upheld on appellate review if the [hearing] court providently exercised its discretion’ " ( Matter of Denkewitz v. Sundara, 130 A.D.3d 723, 724, 11 N.Y.S.3d 878, quoting Nieves v. Tomonska, 306 A.D.2d 332, 332, 760 N.Y.S.2d 682 ; see Matter of Martinez v. Ramos, 122 A.D.3d 927, 928, 995 N.Y.S.2d 683 ; Matter of Samida v. Samida, 116 A.D.3d 779, 780, 982 N.Y.S.2d 899 ; Matter of Winfield v. Gammons, 105 A.D.3d at 754, 963 N.Y.S.2d 272 ; Matter of Lannaman v. Minus, 96 A.D.3d 756, 757, 945 N.Y.S.2d 575 ). Here, the appellant identified no reason why she could not have anticipated the need for the witness's testimony.
The appellant's remaining contentions are without merit.
MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.