| Matter of Konstatine v Konstatine |
| 2013 NY Slip Op 04806 [107 AD3d 994] |
| June 26, 2013 |
| Appellate Division, Second Department |
| In the Matter of Ankica Konstatine,Appellant, v Rade Konstatine, Jr., Respondent. |
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In a family offense proceeding pursuant to Family Court Act article 8, the petitionerappeals from an order of the Family Court, Queens County (Jolly, J.), dated April 16,2012, which, after a hearing, denied the petition.
Ordered that the order is reversed, on the facts, without costs or disbursements, thepetition is granted, and the matter is remitted to the Family Court, Queens County, for theentry of an appropriate order of protection.
The petitioner commenced a family offense proceeding against her step-grandson,alleging that he committed the family offenses of, inter alia, assault in the third degree,harassment in the second degree, and disorderly conduct. After a hearing, the FamilyCourt determined that the petitioner had failed to meet her burden of proof as to theseoffenses, and denied the petition.
A family offense must be established by a fair preponderance of the evidence (seeFamily Ct Act § 832; Matter of Scanziani v Hairston, 100 AD3d 1007 [2012]; Matter of Pearlman vPearlman, 78 AD3d 711, 712 [2010]). "The determination of whether a familyoffense was committed is a factual issue to be resolved by the Family Court, and thatcourt's determination regarding the credibility of witnesses is entitled to great weight onappeal and will not be disturbed if supported by the record" (Matter of Richardson vRichardson, 80 AD3d 32, 43-44 [2010]; see Matter of Winfield v Gammons, 105 AD3d 753 [2013];Matter of Clarke-Golding vGolding, 101 AD3d 1117 [2012]).
Here, while the Family Court properly concluded that the petitioner failed toestablish the family offenses of assault in the third degree (see Penal Law§§ 10.00 [9]; 120.00), and disorderly conduct (see Penal Law§ 240.20), the record does not support the Family Court's determination that thepetitioner failed to prove the family offense of harassment in the second degree. In orderto establish that the respondent committed that offense, the petitioner was required toshow that "with the intent to harass, annoy or alarm" her, the respondent struck, shoved,kicked or otherwise subjected her to "physical contact" or attempted or threatened to doso (Penal Law § 240.26). The credible evidence demonstrated that the respondent,whose father owned the petitioner's apartment, came to the petitioner's apartment in hiscapacity as his father's employee, and demanded that she vacate the apartment for failureto pay rent. When the petitioner refused, and threatened to call the police, the respondentshoved the petitioner, causing her to fall backwards onto the floor. Thus, the [*2]evidence demonstrated that the respondent shoved thepetitioner with the intent to alarm her, so as to encourage her to vacate the apartment ashe demanded (see generallyLynn v State of New York, 33 AD3d 673, 674 [2006]; cf. Matter ofCavanaugh v Madden, 298 AD2d 390 [2002]).
Accordingly, the family offense petition should have been granted, and we remit thematter to the Family Court, Queens County, for the entry of an appropriate order ofprotection. Rivera, J.P., Skelos, Chambers and Austin, JJ., concur.