| Matter of Mamantov v Mamantov |
| 2011 NY Slip Op 05810 [86 AD3d 540] |
| July 5, 2011 |
| Appellate Division, Second Department |
| In the Matter of Tatiana Mamantov, Appellant, v GeorgeMamantov, Respondent. |
—[*1] Andrew W. Szczesniak, White Plains, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals froman order of disposition of the Family Court, Westchester County (Klein, J.), dated September 30,2010, which, upon granting the husband's motion, made at the close of her case, to dismiss thepetition based upon her failure to establish a prima facie case, dismissed the petition.
Ordered that the order of disposition is affirmed, without costs or disbursements.
" 'A family offense must be established by a fair preponderance of the evidence' " (Matter of Lamparillo v Lamparillo, 84AD3d 1381 [2011], quoting Matterof Thomas v Thomas, 72 AD3d 834, 835 [2010]; see Family Ct Act §832). "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 be drawntherefrom . . . The question of credibility is irrelevant, and should not be considered'" (Matter of Prezioso v Prezioso, 79AD3d 1043, 1043 [2010], quoting Matter of Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2010]).
Here, in deciding the husband's motion to dismiss the petition for failure to establish a primafacie case, the Family Court employed an incorrect standard, finding that the wife failed to provethe allegations in the petition by clear and convincing evidence. Additionally, the Family Courterred in making credibility determinations. In spite of these errors, however, the Family Courtproperly granted the husband's motion. The wife alleged in her petition that the husbandcommitted the family offense of aggravated harassment in the second degree (see PenalLaw § 240.26). However, accepting the evidence as true and giving her the benefit of everyreasonable inference (see Matter of Prezioso v Prezioso, 79 AD3d at 1043; Matter ofRamroop v Ramsagar, 74 AD3d at 1209), the wife failed to demonstrate, prima facie, thatthe husband, in committing the act alleged, acted with an "intent to harass, annoy or alarm"(Penal Law § 240.26; see Matter of Cavanaugh v Madden, 298 AD2d 390,391-392 [2002]; cf. Matter ofHasbrouck v Hasbrouck, 59 AD3d 621, 622 [2009]).
The wife's contention that the Family Court improperly scheduled a fact-finding hearing ononly 10 days notice is unpreserved for appellate review, since she failed to timely object to thehearing date or request an adjournment (see CPLR 4017, 5501 [a] [3]). In any event, theFamily Court did not improvidently exercise its discretion in setting the hearing date.[*2]
The wife's remaining contentions are without merit.Angiolillo, J.P., Dickerson, Hall and Roman, JJ., concur.