Given the fact that the root of the family disturbance had dissipated on its own, Family Court providently exercised its discretion in finding that an order of protection was not warranted. We reject petitioner's suggestion that this Court should substitute its own findings for that of the Family Court, because it cannot be said that Family Court's determination could not be reached under any fair interpretation of the evidence (seeYoba v. Yoba, 183 A.D.2d 418, 583 N.Y.S.2d 393 [1st Dept. 1992] ). Furthermore, petitioner's contention that the Family Court was biased against her is unpreserved, and we decline to review in the interest of justice.
Before: Friedman, J.P., Nardelli, Moskowitz, Freedman and Manzanet-Daniels, JJ. No basis exists to disturb Family Court's findings of credibility ( see Yoba v Yoba, 183 AD2d 418). To the extent respondent's acts exposed family members to physical injury, Family Court properly found that the acts were not sufficiently contemporaneous with the dispositional hearing to support the requisite statutory element of "immediate and ongoing danger" ( see id.; Matter of Ann P. v Nicholas C.P., 44 AD3d 776, 777). While Family Court erred in refusing to permit the child to testify in camera at the dispositional hearing, a remand to permit the child to testify in camera would not be warranted since the child's testimony, even if credited, would have involved events not sufficiently contemporaneous to support a finding of aggravating circumstances.
Ordered that the order is affirmed, without costs or disbursements. The Family Court correctly concluded that the events on which the petitioner relied in support of her petition for an order of protection either were not relatively contemporaneous to the petition ( see Matter of Hall v Hall, 45 AD3d 842, 843; Matter of Ann P. v Nicholas C.P., 44 AD3d 776, 776-777; Matter of Thomas v Thomas, 32 AD3d 521, 521; Matter of Ashley P., 31 AD3d 767, 768-769; Swersky v Swersky, 299 AD2d 540, 541; Yoba v Yoba, 183 AD2d 418) or, with respect to an alleged incident in June 2007 did not constitute a family offense ( see Family Ct Act § 812). The petitioner's remaining contentions are without merit.
The record supports the Family Court's determination that the mother failed to prove, by a preponderance of the credible evidence, that the father committed acts which would constitute the offenses of harassment, disorderly conduct, or stalking against the daughter ( see Matter of Patton v Torres, 38 AD3d 667, 668; Matter of Thomas v Thomas, 32 AD3d 521, 521; Matter of London v Blazer, 2 AD3d 860). The majority of the events relied upon to support the petition occurred three years earlier and were not "relatively contemporaneous" ( Matter of Thomas v Thomas, 32 AD3d at 521; Matter of Ashley P., 31 AD3d 767, 769; Swersky v Swersky, 299 AD2d 540, 541; Yoba v Yoba, 183 AD2d 418, 418).
Further, the order of protection is based upon acts which allegedly occurred in July 2002. Those events were not "relatively contemporaneous" ( Swersky v Swersky, 299 AD2d 540, 541; see Yoba v Yoba, 183 AD2d 418). Accordingly, the Family Court should have denied the petition and dismissed the proceeding.
The Family Court properly concluded that the father had committed acts constituting harassment in the second degree in violation of Penal Law § 240.26 (3), and that the family offense was not barred by the father's alleged defenses of laches or statute of limitations ( see Matter of Nina K. v Victor K., 195 Misc 2d 726). However, where, as here, the record is devoid of any proof that the events asserted in the family offense petition were relatively contemporaneous and there was no proof that the father posed an "immediate and ongoing danger" to the mother or other family members (Family Ct Act § 827 [a] [vii]), the issuance of the order of protection was improper ( see Swersky v Swersky, 193 Misc 2d 730, affd 299 AD2d 540; Yoba v Yoba, 183 AD2d 418). The father's remaining contentions are either without merit or have been rendered academic by the determinations herein.
Thus, his present contention that the Family Court denied him due process by permitting the petitioner to file that amended petition is unpreserved for appellate review ( see Matter of Vanessa F., 9 AD3d 464; Matter of Derrick T.M., 286 AD2d 938; Matter of Julie K., 272 AD2d 986; Matter of Michelle S., 195 AD2d 721). In any event, his contention is without merit ( see Matter of Tina T. v. Steven U., 243 AD2d 863; Matter of Michelle S., supra; Yoba v. Yoba, 183 AD2d 418).
The events upon which the plaintiff relied occurred over five years earlier. The events were not "relatively contemporaneous" (Yoba v. Yoba, 183 A.D.2d 418) to support a finding of aggravated circumstances or that the defendant posed an "immediate and ongoing danger" to the plaintiff within the meaning of Family Court Act § 827. Further, in the absence of disputed issues of fact, the Supreme Court was warranted in granting summary judgment in favor of the defendant (see CPLR 3212[b]).
Based upon the court attendant's testimony, petitioner moved to amend the petition to allege an additional violation of the order of protection; there was no objection and Family Court granted the motion. It is well established that Family Court is vested with the discretion to decide whether to permit a pleading to be amended ( see, Yoba v Yoba, 183 A.D.2d 418). In our view, respondent was neither surprised nor prejudiced by allowing the amendment and permitting the alleged violation to be addressed immediately ( see, Matter of Michelle S., 195 A.D.2d 721, 722); the witnesses for both sides were accessible and had just observed the event.
Ordered that the order is affirmed, without costs or disbursements. It is well-settled that issues of credibility are properly determined by the hearing court, whose decision will not be disturbed on appeal if it is supported by a fair interpretation of the evidence ( see, Shoulson v. Shoulson, 213 A.D.2d 466; City of New York v. Bergman, 210 A.D.2d 369; DiSalvo v. Ordway, 208 A.D.2d 798; Vega v. City of New York, 194 A.D.2d 537; Devlin v Putorti, 183 A.D.2d 804; Yoba v. Yoba, 183 A.D.2d 418). The evidence adduced at the hearing in this case supports the Family Court's determination that the petitioner failed to establish by a preponderance of the evidence that the respondent committed the acts enumerated in Family Court Act § 821. Thus, the issuance of an order of protection was not warranted ( see, Family Ct Act § 812; Matter of Holcomb v. Holcomb, 176 A.D.2d 409; Matter of Rogers v. Rogers, 161 A.D.2d 766; Merola v. Merola, 146 A.D.2d 611).