Opinion
14628 Dkt. No. O-00595/21 Case No. 2021-01554
11-18-2021
In the Matter of PHILLIP D.S., Guardian Ad Litem ON BEHALF OF KHLOE M., Petitioner–Appellant v. SHAMEL B., Respondent–Respondent.
Rosemary Rivieccio, New York, for appellant. John R. Eyerman, New York, for respondent.
Rosemary Rivieccio, New York, for appellant.
John R. Eyerman, New York, for respondent.
Webber, J.P., Kern, Gonza´lez, Mendez, Shulman, JJ.
Order, Family Court, New York County (Jacob K. Maeroff, Referee), entered on or about April 16, 2021, which, in a family offense proceeding brought pursuant to article 8 of the Family Court Act, granted respondent's motion to dismiss the petition with prejudice, unanimously reversed, on the law, without costs, the petition reinstated, and the matter remanded for further proceedings.
Pursuant to Family Ct Act § 812(2)(b), "a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." In order "[t]o support a finding that a respondent has committed a family offense, a petitioner must prove [her] allegations by a fair preponderance of the evidence" ( Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ; see Family Ct Act § 832 ). In deciding a motion to dismiss a petition, "the allegations in the petition, as well as the petitioner's evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom" ( Matter of Angel L. [Victor M.], 182 A.D.3d 429, 429, 122 N.Y.S.3d 303 [1st Dept. 2020] [internal quotation marks omitted]).
At the close of petitioner's case, the Referee dismissed the petition with prejudice, finding that, while petitioner guardian met his prima facie burden of showing that a family offense occurred through the child's testimony that the child had been beaten by "Shamel" on various occasions with a belt, there was no showing that respondent in this case was the same person named "Shamel" who had committed the alleged offenses. Contrary to the Referee's determination, the child's testimony included several specific details that were sufficient to enable a factfinder to determine that respondent was that person. Although the child did not remember "Shamel's" last name and was never asked to describe what she looked like, the child testified that she lived with the mother and Shamel in Virginia, and the child listed the names of Shamel's three children. Giving petitioner the benefit of every reasonable inference, the child's testimony provided ample factual basis for finding that respondent is the same person who committed the family offenses that the child described.
Each time respondent was sworn in by the Referee, she stated her full name, which matched the last name of the "Shamel" named in the petition.
On appeal, respondent does not challenge the Referee's determination that Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state, and we find no basis to depart from that finding (see Opportune N. v. Clarence N., 110 A.D.3d 430, 430–431, 972 N.Y.S.2d 245 [1st Dept. 2013] ; Matter of Jose M. v. Angel V., 99 A.D.3d 243, 246, 951 N.Y.S.2d 195 [2d Dept. 2012] ).