| Matter of Jenna T. v Mark U. |
| 2011 NY Slip Op 02494 [82 AD3d 1512] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jenna T., Respondent, v Mark U.,Appellant. |
—[*1] Sandra M. Colatosti, Albany, attorney for the child.
McCarthy, J. Appeals (1) from an order of the Family Court of Saratoga County (Abramson,J.), entered October 8, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, for an order of protection, and (2) from the order of protection.
The parties are the parents of one child (born in 2004). Petitioner filed a family offensepetition alleging that respondent assaulted both her and the child and endangered the child'swelfare. After a hearing, Family Court granted petitioner's application and issued an order ofprotection barring respondent from any contact with petitioner or the child except to implementcourt-ordered visitation or custody. Respondent appeals.[FN*]
Petitioner met her burden of establishing by a preponderance of the evidence that respondentcommitted a family offense (see Family Ct Act § 832; Matter of Chadwick F. v Hilda G., 77AD3d 1093, 1093-1094 [2010], lv denied 16 NY3d 703 [2011]). When conflictingevidence is presented, we accord deference to Family Court's credibility determinations (see Matter of Boua TT. v Quamy UU.,66 AD3d 1165, 1166 [2009], lv denied 14 NY3d 702 [2010]). Petitioner testifiedthat respondent picked up their son by his neck and slammed him into a chair, [*2]leaving pressure marks on the child's skin for several hours. Shefurther testified that respondent struck her in the head while she was holding their child, causingthem to fall to the floor. Having hit her head during this fall, she became dizzy and was unable toget up on her own. A few minutes later, respondent struck or pushed her while she was holdingthe child, again causing petitioner and the child to fall to the ground. Respondent testified,denying that he handled the child roughly or laid a hand on petitioner.
Although other witnesses testified, Family Court mainly relied on the testimony of theparties, as they were the only adults present for the incident. The court acknowledged issues thataffected petitioner's credibility, namely her delay in filing the present application and a letter shewrote praising respondent as a man and father, but found her "credibility strongest in detailingthe violent incident which gave rise to this" petition. On the other hand, the court found"respondent's testimony not credible" and explained its reasons for that conclusion. Givingdeference to the court's credibility determinations, the record supports the finding that respondentcommitted a family offense (see Matter of Chadwick F. v Hilda G., 77 AD3d at 1094;Matter of Boua TT. v Quamy UU., 66 AD3d at 1167).
Mercure, J.P., Rose and Egan Jr., JJ., concur. Ordered that the order entered October 8, 2009is affirmed, without costs. Ordered that the appeal from the order of protection is dismissed, asmoot, without costs.
Footnote *: The appeal from the order ofprotection is moot because that order has expired (see Matter of Brandon DD. [Jessica EE.], 74 AD3d 1435, 1437 n 2[2010]).