Opinion
No. O-03313-21
10-18-2022
In the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act Z.B., Petitioner, v. L.S., Respondent.
Seth Schraier, Esq. for Petitioner; Paul D'Emilia, Esq. for Respondent
Unpublished Opinion
Seth Schraier, Esq. for Petitioner;
Paul D'Emilia, Esq. for Respondent
Hon. Hasa A. Kingo, J.F.C.
NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
In this proceeding brought under Article 8 of the Family Court Act, respondent L.S. ("respondent"), through counsel, moves to dismiss petitioner Z.B.'s ("petitioner") petition following the close of petitioner's case at fact-finding. Respondent argues that petitioner has failed to show, by a preponderance of the evidence, that respondent committed any qualifying family offenses. Petitioner, through her counsel, opposes the motion by arguing that her petition must be viewed in a light most favorable. After considering the parties arguments on the record, and after a thorough review of the evidence presented by petitioner during the fact-finding, including recordings of the proceeding that are incorporated by reference, respondent's motion is granted.
Background
Petitioner and respondent were previously married, share a child in common, and formerly resided together. On July 12, 2021, petitioner filed a family offense petition in the Family Court in New York County. After issue was joined, and following several court conferences at which resolution could not be achieved, the matter was set for a fact-finding hearing on June 9, 2022, June 14, 2022, and. Ultimately, testimony was heard on June 9, 2022, and. Petitioner's most prominent allegation within her petition, as testified to throughout the course of the fact-finding, related to respondent's purported communications to petitioner that respondent would post a video of petitioner online. Petitioner further testified that her last in-person contact with respondent occurred in 2015 when she allowed respondent to stay in her home during a tumultuous time in respondent's life when respondent needed a place to stay. Petitioner testified, without proof, that she believed that the time when respondent briefly stayed with petitioner in 2015 must have been the time when respondent had an opportunity to film petitioner for purposes of creating a video purportedly depicting petitioner in an "embarrassing" light. Petitioner testified that she never observed respondent film petitioner during respondent's stay. Nevertheless, petitioner testified that after respondent's stay, respondent contacted petitioner in 2016 and stated that he had posted a video of petitioner online. Petitioner testified that she knew nothing about the video's content, and that she never viewed the video. Petitioner then testified that she did not have any contact with respondent between 2016 and 2021. In 2021, petitioner testified that respondent contacted her from a blocked number to state, once again, that he had posted a video online of petitioner. Petitioner then testified that she knew nothing about the video's content. Petitioner did testify to a general belief that she assumed that phone calls she received sporadically between 2016 and 2021 may have initiated by respondent. Nevertheless, petitioner conceded that she never answered such calls, and that no voicemails were left to confirm that respondent had initiated the calls. On cross-examination at the fact-finding, petitioner reiterated that she had not viewed the video, could not recall the specific nature of threats respondent communicated to petitioner, and had no physical contact with respondent after 2015. After petitioner rested, respondent made the instant application to dismiss premised on petitioner's failure to meet her burden of showing, by a preponderance of the evidence, that respondent committed a qualifying family offense.
Discussion
At a fact-finding hearing pursuant to Family Court Act article 8, the petitioner bears the burden of establishing the allegations in the petition by a "fair preponderance of the evidence" (Family Court Act § 832), and the Family Court's credibility determinations at a fact-finding hearing are entitled to great weight unless clearly unsupported by the record (see Matter of Creighton v. Whitmore, 71 A.D.3d 1141 [2d Dept. 2010]; Matter of Nusbaum v. Nusbaum, 59 A.D.3d 725 [2d Dept. 2009]; see also Matter of Crenshaw v. Thorpe-Crenshaw, 146 A.D.3d 951, 952 [2d Dept. 2017]; Matter of Zhuo Hong Zheng v. Hsin Cheng, 144 A.D.3d 1166, 1167 [2d Dept. 2016]; Matter of Kiani v. Kiani, 134 A.D.3d 1036, 1037 [2d Dept. 2015]; Matter of Tulshi v. Tulshi, 118 A.D.3d 716 [2d Dept. 2014]; Matter of Konstatine v. Konstatine, 107 A.D.3d 994 [2d Dept. 2013]). Where a petitioner fails to set forth that the respondent has committed a qualifying family offense, the petition may be dismissed (Lashlee v Lashlee, 161 A.D.3d 865, 866 [2d Dept 2018]). "Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear their testimony and observe their demeanor" (Matter of Ava A. [Steven A.], 179 A.D.3d 666, 669 [2d Dept. 2020]; see Matter of Magana v. Delph, 163 A.D.3d 673 [2d Dept. 2018]). Indeed, it has been said that the hearing court "has the best vantage point for evaluating the credibility of the witness[.]" (In re Everett C. v. Oneida P., 61 A.D.3d 489 [1st Dept 2009]).
Finally, under Family Court Act §812 (1), a petition cannot be dismissed "solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition," but it can be dismissed if the events are not contemporaneous and there is a finding that the petition fails to "sufficiently plead conduct constituting a pattern of imminent and ongoing danger" (Latava P. v Charles W., 171 A.D.3d 525 [1st Dept 2019]).
Here, on its face, petitioner's testimony that respondent committed a family offense by purportedly posting a video that petitioner never viewed and that petitioner does not even know exists, fails to make out the required showing that respondent committed a family offense against petitioner. Respondent's purported posting of a video depicting petitioner is the gravamen of petitioner's petition, and was central to petitioner's testimony. Nevertheless, petitioner testified that she never observed respondent film petitioner and that petitioner knew nothing about the video's content. Petitioner also testified that she did not have any contact with respondent between 2016 and 2021. In 2021, petitioner testified that respondent contacted her from a blocked number to state, once again, that he had posted a video online of petitioner. Petitioner then reiterated that she knew nothing about the video's content or existence.
Moreover, petitioner's testimony regarding other statements made by petitioner that petitioner considered to be threats was incredible as a matter of law. To be sure, petitioner's testimony, both in her inflection and demeanor, appeared to be motivated by a general animus towards respondent rather than genuine fear of harm because of respondent's statements. Indeed, throughout her testimony, petitioner exhibited a generally hostile demeanor and made repeated phantastic descriptions of the events in question. Even where she appeared to be referencing specific contact with respondent, petitioner could only testify to a general belief that she had sporadically received calls from respondent between 2016 and 2021. What's more, petitioner conceded that she never answered such calls, and that no voicemails were left to confirm that respondent had initiated the calls. Moreover, petitioner relied on general and conclusory statements, all of which were uncorroborated by any evidence other than petitioner's own slanted testimony. Taken as a whole, petitioner fell short of meeting her necessary burden. Notably, even if this court had credited petitioner's testimony, none of the conduct alleged by petitioner appears to have credibly shown the violation of any qualifying family offenses, particularly when one considers that the only arguable qualifying threats occurred in 2016 and later in 2021, years apart, and do not speak to a "pattern of imminent and ongoing danger" (Latava P., 171 A.D.3d 525, supra). In fact, petitioner conceded that respondent has not threatened petitioner in years, and that petitioner did not know if respondent was in fact the person who initiated several unanswered calls to petitioner. In opposition to the instant motion, petitioner erroneously stated that this court must afford petitioner the benefit of every favorable inference. While that is true where a motion to dismiss is made pursuant to CPLR §3211 (a)(7) for failure to state a cause of action, here the court held a hearing at which petitioner bore the burden of establishing by a preponderance of the evidence that a family offense was committed against her, and failed to proffer credible testimony to meet that burden. Therefore, the deficiencies mentioned herein do not speak to pleading deficiencies and defects, but rather to petitioner's failure to meet her necessary burden at fact-finding. Considering the foregoing, it is hereby
ORDERED that the petition is dismissed, with prejudice, as petitioner failed to satisfy her burden of showing that respondent committed a qualifying family offense against her. The Temporary Order of Protection is vacated, and the matter is marked off calendar.
This constitutes the order and decision of the court.