| Matter of Janice M. v Terrance J. |
| 2012 NY Slip Op 04413 [96 AD3d 482] |
| June 7, 2012 |
| Appellate Division, First Department |
| In the Matter of Janice M., Appellant, v Terrance J.,Respondent. |
—[*1] Randall S. Carmel, Syosset, for respondent.
Order, Family Court, New York County (Fiordaliza A. Rodriguez, Ref.), entered on or aboutJune 6, 2011, which dismissed the petition for an order of protection against respondent forfailure to make out a prima facie case, unanimously reversed, on the law, without costs, thepetition reinstated, and the matter remanded for further proceedings in accordance herewith.
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 that may be drawntherefrom. The issue of credibility is irrelevant and should not be considered (Matter of Mamantov v Mamantov, 86AD3d 540, 541 [2011], lv denied 17 NY3d 715 [2011]; Matter of Ramroop v Ramsagar, 74AD3d 1208, 1209 [2010]).
Petitioner testified that respondent, her son-in-law, threatened to have someone beat her up,told her that he would "beat [her] ass," and threatened to hit her with a broom. If true, and givingpetitioner the benefit of every reasonable inference, she established a prima facie case of thefamily offense of harassment in the second degree. The court rejected petitioner's testimonybased on her admitted use of marijuana. However, consideration of petitioner's credibility wasimproper on a motion to dismiss for failure to prove a prima facie case.
The court properly dismissed the charge of disorderly conduct since there was no [*2]evidence that respondent intended to cause public inconvenience,annoyance or alarm or that his conduct in the private residence recklessly created such a risk(Penal Law § 240.20). Concur—Tom, J.P., Andrias, Moskowitz, Acosta andAbdus-Salaam, JJ.