| Matter of Peter G. v Karleen K. |
| 2008 NY Slip Op 04610 [51 AD3d 541] |
| May 22, 2008 |
| Appellate Division, First Department |
| In the Matter of Peter G., Appellant, v Karleen K.,Respondent. |
—[*1] Richard J. Feinberg, New City, for respondent.
Order, Family Court, New York County (Karen I. Lupuloff, J.), entered December 5, 2007,which, after a fact-finding hearing, in this proceeding brought pursuant to article 8 of the FamilyCourt Act, dismissed the petition seeking an order of protection, unanimously affirmed, withoutcosts.
The court properly dismissed the petition where the evidence failed to establish by a fairpreponderance thereof that respondent committed acts that would constitute assault in the thirddegree during an incident where the parties' five-year-old son would not willingly attend aweekend visit with petitioner (see Family Ct Act § 812 [1]; § 832; PenalLaw § 120.00). There exists no basis upon which to disturb the court's credibilitydeterminations (see Matter of Smith v Smith, 308 AD2d 592 [2003]).
We decline to review petitioner's request that the Family Court Judge be recused and that hiscustody petition be assigned to a different judge, since this issue is raised for the first time onappeal. Concur—Lippman, P.J., Andrias, Nardelli, Acosta and DeGrasse, JJ.