| Matter of Prezioso v Prezioso |
| 2010 NY Slip Op 09515 [79 AD3d 1043] |
| December 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Corinne Prezioso, Appellant, v John Prezioso,Respondent. |
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In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals from anorder of disposition of the Family Court, Orange County (Klein, J.), dated July 28, 2009, which, upongranting the husband's motion, made at the close of her case, to dismiss the petition based upon herfailure to establish a prima facie case, dismissed the petition.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements, themotion to dismiss the petition is denied, the petition is reinstated, and the matter is remitted to theFamily Court, Orange County, for further proceedings in accordance herewith.
The wife brought this petition alleging that the husband violated the provisions of an order ofprotection issued in a related proceeding. During the hearing, the wife testified that the husband,uninvited, had entered the house in which she currently resided alone, angrily moved about the housewhile taking photographs, and then stood over her, very closely, as she sat, and snapped a flashphotograph in her face, temporarily blinding her. According to the wife's testimony, the husband thenstated that he would "hurt" her and make her "sorry" if she did not remove a certain vehicle from thegarage. At the conclusion of the wife's evidence, and upon the husband's motion, but prior to thehusband presenting evidence, the Family Court dismissed the petition, explaining from the bench that"even though the court finds there may have been stupidity in what [the husband] did and the fact thathe . . . may have engaged in inappropriate [behavior] it does not rise to a family offenseunder the quantum of proof under the Family Court Act."
In determining a motion to dismiss for failure to establish a prima facie case, "the evidence must beaccepted as true and given the benefit of every reasonable inference which may be drawn therefrom. . . The question of credibility is irrelevant, and should not be considered" (Matter of Ramroop v Ramsagar, 74 AD3d1208, 1209 [2010] [internal quotation marks omitted]). Here, the Family Court failed to properlyapply this standard. Viewing the wife's testimony in a light most favorable to her, and accepting hertestimony as true, it established a prima facie case (see Matter of Ramroop v Ramsagar, 74AD3d at 1209; Gonzalez v Gonzalez, 262 AD2d 281, 282-283 [1999]). Accordingly, thehusband's motion to dismiss the petition for failure to establish a prima facie case should have beendenied.
Based upon the foregoing, the petition must be reinstated and the matter remitted to the FamilyCourt, Orange County, for a new fact-finding hearing and for a new determination of the petition(see Matter of Ramroop v Ramsagar, 74 AD3d at 1209).[*2]
In light of our determination, we need not reach the wife'sremaining contentions. Prudenti, P.J., Covello, Florio and Belen, JJ., concur.