Opinion
2018–15158 Docket No. O–10730–18
07-10-2019
In the Matter of Sharaz MOHAMMED, Appellant, v. Tarmattie MOHAMMED, Respondent.
Cabelly & Calderon, Jamaica, N.Y. (Lewis S. Calderon of counsel), for appellant. Jeffrey C. Bluth, New York, NY, for respondent.
Cabelly & Calderon, Jamaica, N.Y. (Lewis S. Calderon of counsel), for appellant.
Jeffrey C. Bluth, New York, NY, for respondent.
ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding in May 2018, alleging, inter alia, that the respondent, the petitioner's ex-wife, committed the family offense of harassment in the second degree when she cursed at the petitioner and his wife and engaged in other alarming and harassing behavior and conduct over an extended period of time. Following a fact-finding hearing, the Family Court determined that the petitioner failed to establish by a preponderance of the evidence that the respondent committed a family offense against the petitioner and, in effect, denied the petition and dismissed the proceeding.
In a family offense proceeding, the petitioner has the burden of establishing the family offense by a fair preponderance of the evidence (see Family Ct Act § 832 ; Matter of Estime v. Civil , 168 A.D.3d 936, 937, 90 N.Y.S.3d 557 ; 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 McGregor v. Ferguson , 167 A.D.3d 897, 897, 88 N.Y.S.3d 342 ; Matter of Estime v. Civil , 168 A.D.3d at 937, 90 N.Y.S.3d 557 ). Where, as here, the 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 will not be disturbed unless clearly unsupported by the record (see Matter of Diaz v. Rodriguez , 164 A.D.3d 1340, 81 N.Y.S.3d 756 ; Matter of Henderson v. Henderson , 137 A.D.3d 911, 912, 27 N.Y.S.3d 183 ; Matter of Musheyev v. Musheyev , 126 A.D.3d 800, 801, 2 N.Y.S.3d 807 ; Matter of Saldivar v. Cabrera , 109 A.D.3d 831, 832, 971 N.Y.S.2d 310 ).
Here, the Family Court's determination was based upon its credibility assessments and is supported by the record (see Matter of McGregor v. Ferguson , 167 A.D.3d at 897, 88 N.Y.S.3d 342 ; Matter of Lopez de Salmon v. Salmon , 150 A.D.3d at 1122, 52 N.Y.S.3d 638 ; Matter of Marte v. Biondo , 104 A.D.3d 947, 947–948, 960 N.Y.S.2d 914 ).
The petitioner's remaining contentions are without merit.
Accordingly, we agree with the Family Court's determination to, in effect, deny the petition and dismiss the proceeding (see Matter of Lopez de Salmon v. Salmon , 150 A.D.3d at 1122, 52 N.Y.S.3d 638 ; Matter of Davis v. Felder , 140 A.D.3d 752, 753, 30 N.Y.S.3d 922 ).
SCHEINKMAN, P.J., MILLER, MALTESE and LASALLE, JJ., concur.