Opinion
06-08-2017
Angela MURRAY–CAINES, Plaintiff–Appellant, v. William L. CAINES, Defendant–Respondent.
Wilson Sonsini Goodrich & Rosati, P.C., New York (Craig E. Bolton of counsel), for appellant. Steven N. Feinman, White Plains, for respondent.
Wilson Sonsini Goodrich & Rosati, P.C., New York (Craig E. Bolton of counsel), for appellant.
Steven N. Feinman, White Plains, for respondent.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about February 24, 2016, which, after a hearing, among other things, dismissed plaintiff wife's petition seeking an order of protection; and order, same court and Justice, entered on or about September 26, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiff's CPLR 4404(b) motion to set aside the prior order, unanimously affirmed, without costs.
The Family Court properly determined that the allegations in the petition are not supported by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept.2009] ). The court stated that it had reached its determination following completion of the hearing and upon consideration of both parties' testimony (cf. Matter of Janice M. v. Terrance J., 96 A.D.3d 482, 945 N.Y.S.2d 693 [1st Dept.2012] [consideration of the petitioner's credibility was improper on a motion to dismiss the petition for failure to prove a prima facie case] ). There is no basis for disturbing the court's determination that plaintiff's testimony was not credible (see Matter of Everett C., 61 A.D.3d 489, 878 N.Y.S.2d 301 ), particularly given the evidence of plaintiff's motive to have defendant barred from the marital residence.
The Family Court properly granted defendant's prehearing application to limit plaintiff's proof to the allegations in the petition (see Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63 [2d Dept.2005] ; see also Matter of Salazar v. Melendez, 97 A.D.3d 754, 948 N.Y.S.2d 673 [2d Dept.2012], lv. denied 20 N.Y.3d 852, 2012 WL 5845635 [2012] ).
We have considered plaintiff's remaining arguments and find them unavailing.
TOM, J.P., SWEENY, ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, JJ., concur.