| Matter of Awoleke v Awoleke |
| 2010 NY Slip Op 09130 [79 AD3d 743] |
| December 7, 2010 |
| Appellate Division, Second Department |
| In the Matter of Salimata Awoleke, Appellant, v SamuelAwoleke, Respondent. |
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In a family offense proceeding pursuant to Family Court Act article 8, Salimata Awoleke appealsfrom an order of the Family Court, Queens County (O'Connor, J.), dated March 27, 2009, whichgranted Samuel Awoleke'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 further proceedingsbefore another Judge in accordance herewith.
On April 12, 2007, Salimata Awoleke (hereinafter the petitioner) filed a family offense petitionagainst Samuel Awoleke (hereinafter the respondent) alleging, inter alia, that on April 11, 2007, he hadfollowed and verbally threatened her after the parties left the Supreme Court, Queens County, uponsettling their divorce action. The Family Court issued a temporary order of protection which wasextended numerous times until March 10, 2009. On that date, both parties appeared and wererepresented by counsel. The petitioner commenced her testimony in support of the petition and thematter was continued to March 27, 2009. After the petitioner concluded her testimony, she rested hercase. The Family Court granted the respondent's motion to dismiss the petition on the ground that thepetitioner failed to establish a prima facie case. The petitioner appeals. We reverse.
On a motion to dismiss for failure to establish a prima facie case, the petitioner's evidence must beaccepted as true and afforded the benefit of every reasonable inference which may be drawn from it(see Matter of Ramroop v Ramsagar, 74AD3d 1208 [2010]; Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999]). Moreover, sucha motion should not be granted merely because there is an issue of credibility or there areinconsistencies in the proof (id.). Here, the Family Court failed to properly apply this standardin dismissing the petition for failure to establish a prima facie case. Viewing the petitioner's testimonyand other evidence in a light most favorable to her, and accepting all the evidence she presented as true,she established a prima facie case (see Matterof Ramroop v Ramsagar, 74 AD3d 1208 [2010]). Accordingly, the Family Court should havedenied the respondent's motion. Therefore, we reinstate the petition and remit the matter to the FamilyCourt, Queens County, for a new fact-finding hearing and determination of the petition. Under thecircumstances of this case, we deem it appropriate that the new hearing should be held before adifferent judge. Mastro, J.P., Dillon, Eng and Chambers, JJ., concur.