| Matter of Stephens v Stephens |
| 2013 NY Slip Op 03102 [106 AD3d 748] |
| May 1, 2013 |
| Appellate Division, Second Department |
| In the Matter of Clemenston Stephens,Appellant, v Claude Stephens, Respondent. |
—[*1] Zvi Ostrin, New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the petitionerappeals from an order of the Family Court, Kings County (Shafer, J.H.O.), dated April13, 2012, which, upon the granting of the respondent's motion, made at the close of thepetitioner's case, to dismiss the petition for failure to establish a prima facie case,dismissed the petition.
Ordered that the order is affirmed, without costs or disbursements.
"In determining a motion to dismiss for failure to establish a prima facie case, theevidence must be accepted as true and given the benefit of every reasonable inferencewhich may be drawn therefrom. The question of credibility is irrelevant, and should notbe considered" (Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999] [citationsomitted]; see Matter ofMamantov v Mamantov, 86 AD3d 540, 541 [2011]; Matter of Ramroop vRamsagar, 74 AD3d 1208, 1209 [2010]).
Contrary to the petitioner's contention, accepting the evidence proferred in support ofthe petition as true and giving it the benefit of every reasonable inference, it failed toestablish, prima facie, that the respondent committed the family offense of harassment inthe second degree (see Matter of Mamantov v Mamantov, 86 AD3d at 541; Matter of Sellers vSellers-Boykin, 72 AD3d 832 [2010]). Dillon, J.P., Chambers, Hall andHinds-Radix, JJ., concur.