Opinion
04-26-2017
In the Matter of Donald R. SMITH, appellant, v. Kenneth C. LUDEWIG, respondent.
Rhonda R. Weir, Brooklyn, N.Y., for appellant. Perry, Van Etten, Rozanski & Primavera, LLP, Melville, N.Y. (Geoffrey H. Pforr of counsel), for respondent.
Rhonda R. Weir, Brooklyn, N.Y., for appellant.
Perry, Van Etten, Rozanski & Primavera, LLP, Melville, N.Y. (Geoffrey H. Pforr of counsel), for respondent.
Appeal by the petitioner from an order of the Family Court, Nassau County (Merik R. Aaron, J.), dated November 20, 2015. The order, after a hearing, in effect, denied the petition and dismissed the proceeding.ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, his brother-in-law, alleging that the respondent committed the family offenses of attempted assault, assault in the second or third degree, harassment in the first or second degree, disorderly conduct, menacing in the second or third degree, and reckless endangerment. After a hearing, the Family Court, in effect, denied the petition and dismissed the proceeding.
A family offense must be established by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Saldivar v. Cabrera, 109 A.D.3d 831, 831, 971 N.Y.S.2d 310 ; Matter of Bazante v. Bazante, 107 A.D.3d 707, 707, 966 N.Y.S.2d 483 ; Matter of Salazar v. Melendez, 97 A.D.3d 754, 755, 948 N.Y.S.2d 673 ; Matter of Vankeuren v. Craft, 39 A.D.3d 763, 832 N.Y.S.2d 444 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record" (Matter of Saldivar v. Cabrera, 109 A.D.3d at 832, 971 N.Y.S.2d 310 ; see Matter of Winfield v. Gammons, 105 A.D.3d 753, 963 N.Y.S.2d 272 ; Matter of Jackson v. Idlett, 103 A.D.3d 723, 959 N.Y.S.2d 706 ; Matter of Kanterakis v. Kanterakis, 102 A.D.3d 784, 785, 957 N.Y.S.2d 890 ).
In light of the parties' sharply conflicting accounts of the events at issue, and giving deference to the Family Court's assessment of credibility, we perceive no basis upon which to disturb the court's determination that the petitioner failed to establish by a fair preponderance of credible evidence that the respondent committed any of the family offenses alleged in the petition.
RIVERA, J.P., AUSTIN, MILLER and BARROS, JJ., concur.