| Matter of Kobel v Holiday |
| 2010 NY Slip Op 08481 [78 AD3d 1660] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of James Kobel, Respondent, v Rita Holiday,Appellant. |
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Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), enteredSeptember 11, 2009 in a proceeding pursuant to Family Court Act article 8. The order of protectiondirected respondent to refrain from offensive conduct against petitioner and the parties' child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to article 8 of the Family Court Act, respondent mothercontends that Family Court erred in determining, following a fact-finding hearing, that she committed afamily offense. We reject that contention. We conclude that the court properly found that petitionerfather met his burden of establishing by a preponderance of the evidence that the mother committed thefamily offense of reckless endangerment in the second degree (see Family Ct Act § 812[1]; Penal Law § 120.20; see generallyMatter of Harrington v Harrington, 63 AD3d 1618 [2009], lv denied 13 NY3d 705[2009]), thus warranting the issuance of an order of protection, by lurching her car forward andstopping within inches of the father and the parties' child. Contrary to the further contention of themother, the court's assessment of the credibility of the witnesses is entitled to great weight, and thecourt was entitled to credit the testimony of the father over that of the mother (see Matter of Scroger v Scroger, 68 AD3d1777 [2009], lv denied 14 NY3d 705 [2010]). Present—Smith, J.P., Lindley,Sconiers, Pine and Gorski, JJ.