| Matter of DeGasero v DeGasero |
| 2012 NY Slip Op 03445 [95 AD3d 883] |
| May 1, 2012 |
| Appellate Division, Second Department |
| In the Matter of Rosanne DeGasero, Respondent, v PhilipDeGasero, Appellant. |
—[*1]
Del Atwell, East Hampton, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Philip DeGaseroappeals from an order of protection of the Family Court, Suffolk County (Burke, Ct. Atty. Ref.),dated April 6, 2011, which, upon the denial of his motion to dismiss the petition for failure toestablish a prima facie case, and upon a finding, made after a hearing, that he committed thefamily offense of disorderly conduct, directed him, inter alia, to refrain from threatening RosanneDeGasero.
Ordered that the order of protection is affirmed, without costs or disbursements.
"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 beconsidered" (Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999] [citation omitted]; see Matter of Ramroop v Ramsagar, 74AD3d 1208, 1209 [2010]). The Family Court applied the correct standard in denying theappellant's motion to dismiss, as the evidence presented by the petitioner, when viewed in thelight most favorable to her, established prima facie that the appellant committed the familyoffense of disorderly conduct.
Moreover, "[t]he determination of whether a family offense was committed is a factual issueto be resolved by the hearing court . . . and that court's determination regarding thecredibility of witnesses is entitled to great weight on appeal" (Matter of Creighton v Whitmore, 71 AD3d 1141 [2010] [citationsomitted]; see Family Ct Act §§ 812, 832; Matter of Halper v Halper, 61 AD3d 687 [2009]; Matter of Gray v Gray, 55 AD3d909 [2008]; Matter of Lallmohamedv Lallmohamed, 23 AD3d 562 [2005]). The Family Court's determination that theappellant committed the family offense of disorderly conduct was based upon its assessment ofthe credibility of the parties and an eyewitness, and is supported by the record (see Matter of Richardson v Richardson,80 AD3d 32, 44 [2010]). Accordingly, we decline to disturb the Family Court'sdetermination. Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.