Opinion
12-14-2016
In the Matter of Virgilia NUNEZ, appellant, v. Joseph DIAZ, respondent.
Elliot Green, Brooklyn, NY, for appellant.
Elliot Green, Brooklyn, NY, for appellant.
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 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Ct. Act § 832 ; see Matter of Batista v. Iqbal, 128 A.D.3d 1063, 8 N.Y.S.3d 605 ; Matter of Cole v. Muirhead, 125 A.D.3d 964, 5 N.Y.S.3d 178 ). “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 A.D.3d 1141, 1141, 898 N.Y.S.2d 585 ; see Family Ct. Act §§ 812, 832 ; Matter of Marte v. Caraballo, 116 A.D.3d 1050, 983 N.Y.S.2d 881 ). 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 A.D.3d 717, 965 N.Y.S.2d 885 ).
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 A.D.3d 916, 27 N.Y.S.3d 184 ; Matter of Marte v. Caraballo, 116 A.D.3d 1050, 983 N.Y.S.2d 881 ; Matter of Shiffman v. Handler, 115 A.D.3d 753, 981 N.Y.S.2d 790 ). Accordingly, the Family Court properly dismissed the petition.
BALKIN, J.P., AUSTIN, SGROI and LaSALLE, JJ., concur.