| Matter of Ramroop v Ramsagar |
| 2010 NY Slip Op 05565 [74 AD3d 1208] |
| June 22, 2010 |
| Appellate Division, Second Department |
| In the Matter of Metelesh Kavita Ramroop,Appellant, v Surendradat Ramsagar, Respondent. |
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In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals froman order of the Family Court, Queens County (O'Connor, J.), dated May 29, 2009, which grantedthe husband's motion to dismiss the petition for her failure to establish a prima facie case.
Ordered that the order is reversed, on the law, without costs or disbursements, the petition isreinstated, and the matter is remitted to the Family Court, Queens County, for furtherproceedings in accordance herewith.
"In determining a motion to dismiss for failure to establish a prima facie case, the evidencemust be accepted as true and given the benefit of every reasonable inference which may bedrawn therefrom . . . The question of credibility is irrelevant, and should not beconsidered" (Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999]; see Wai Foon Chanv Yuk Sim Chan, 193 AD2d 575, 575-576 [1993]; see also Matter of Nikki O. v WilliamN., 64 AD3d 938, 939 [2009]; Matter of David WW. v Laureen QQ., 42 AD3d 685[2007]; Matter of Adams v Borrasca, 288 AD2d 840 [2001]; Wayne County Dept. ofSocial Servs. v Titcomb, 124 AD2d 989 [1986]). The Family Court failed to properly applythis standard in dismissing the wife's petition for failure to establish a prima facie case. Viewingthe wife's testimony in a light most favorable to her, and accepting her testimony as true, itestablished a prima facie case (see Gonzalez v Gonzalez, 262 AD2d at 282-283; WaiFoon Chan v Yuk Sim Chan, 193 AD2d at 576). Accordingly, the motion for judgment as amatter of law dismissing the petition for failure to establish a prima facie case should have beendenied.
Thus, we reinstate the petition and remit the matter to the Family Court, Queens County, fora new fact-finding hearing and determination of the petition (see Matter of Hagopian vHagopian, 66 AD3d 1021 [2009]). However, since the record discloses that the husband ison active military duty, prior to the proceeding, the Family Court must ascertain his currentdeployment status, and determine whether a stay is necessary pursuant to Military Law §304. Dillon, J.P., Balkin, Eng and Chambers, JJ., concur.