Opinion
2019–11878 Docket No. O–187–18
02-24-2021
In the Matter of Alba A. ARIAS, appellant, v. Eddie David CASTELLANOS, respondent.
Linda C. Baunsberg, Staten Island, NY, for appellant. Carol Kahn, New York, NY, for respondent.
Linda C. Baunsberg, Staten Island, NY, for appellant.
Carol Kahn, New York, NY, for respondent.
WILLIAM F. MASTRO, A.P.J., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, 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 (Jamila Cha–Jua–Lee, Ct. Atty. Ref.), dated September 17, 2019. The order, after a hearing, denied the family offense petition and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
In January 2018, the petitioner commenced this family offense proceeding seeking an order of protection against the respondent, her husband. After a hearing, the Family Court denied the petition and dismissed the proceeding. The petitioner appeals.
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 Harris v. Harris–Olayinka, 181 A.D.3d 605, 117 N.Y.S.3d 619 ; Matter of Johnson v. Rivers, 165 A.D.3d 931, 86 N.Y.S.3d 614 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal, such that they will not be disturbed unless clearly unsupported by the record" ( Matter of Gjelaj v. Gjelaj, 168 A.D.3d 937, 938, 92 N.Y.S.3d 350 ; see Matter of Rall v. Phillips, 177 A.D.3d 641, 642, 109 N.Y.S.3d 875 ; Matter of Buskey v. Buskey, 133 A.D.3d 655, 656, 20 N.Y.S.3d 108 ).
Here, the Family Court was presented with conflicting testimony from the parties as to whether the respondent had committed a family offense. The court's determination that the petitioner failed to establish a family offense was based on its credibility assessments and is supported by the record (see Matter of Harris v. Harris–Olayinka, 181 A.D.3d 605, 117 N.Y.S.3d 619 ; Matter of Johnson v. Rivers, 165 A.D.3d at 932, 86 N.Y.S.3d 614 ). Accordingly, there is no basis to disturb the court's determination denying the petition and dismissing the proceeding.
The petitioner's remaining contentions are without merit.
MASTRO, A.P.J., HINDS–RADIX, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.