| Matter of Bah v Bah |
| 2013 NY Slip Op 08621 [112 AD3d 921] |
| December 26, 2013 |
| Appellate Division, Second Department |
| In the Matter of Patricia Bah,Appellant, v Mohammed Bah, Respondent. |
—[*1] David Moreno, Staten Island, 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, Richmond County (Mitek, Ct. Atty. Ref.),dated December 3, 2012, which, after a hearing, in effect, denied the petition, dismissedthe proceeding, and vacated an order of protection dated November 16, 2012.
Ordered that the order is affirmed, without costs or disbursements.
"In a family offense proceeding, the petitioner has the burden of establishing, by a'fair preponderance of the evidence,' that the charged conduct was committed as allegedin the petition" (Matter ofCassie v Cassie, 109 AD3d 337, 340 [2013], quoting Family Ct Act §832; see Matter of Testa vStrickland, 99 AD3d 917, 917 [2012]). " 'The determination of whether a familyoffense was committed is a factual issue to be resolved by the hearing court' " (Matter of Kaur v Singh, 73AD3d 1178, 1178 [2010], quoting Matter of Creighton v Whitmore, 71 AD3d 1141, 1141[2010]; see Family Ct Act §§ 812, 832; Matter of Shields v Brown,107 AD3d 1005, 1006 [2013]; Matter of Yalvac v Yalvac, 83 AD3d 853, 854 [2011]; Matter of Halper v Halper, 61AD3d 687 [2009]; Matterof Lallmohamed v Lallmohamed, 23 AD3d 562 [2005]), "whose 'determinationregarding the credibility of witnesses is entitled to great weight on appeal unless clearlyunsupported by the record' " (Matter of Kaur v Singh, 73 AD3d at 1178, quotingMatter of Creighton v Whitmore, 71 AD3d at 1141; see Matter of Shields vBrown, 107 AD3d at 1006; Matter of Yalvac v Yalvac, 83 AD3d at 854; Matter of Robbins v Robbins,48 AD3d 822, 822 [2008]; Matter of Phillips v Laland, 4 AD3d 529, 530 [2004]).
Here, the petitioner failed to establish, by a fair preponderance of the evidence, thatthe respondent committed the family offenses of menacing in the second degree or thirddegree (see Penal Law §§ 120.14, 120.15), criminal mischief in thefourth degree (see Penal Law § 145.00), harassment in the second degree(see Penal Law § 240.26), or disorderly conduct (see Penal Law§ 240.20). The Family Court's determination that the petitioner's testimony waslacking in credibility, and that the respondent testified credibly, is entitled to great weighton appeal as it is not clearly unsupported by the record (see generally Matter ofShields v Brown, 107 AD3d at 1006; Matter of Yalvac v Yalvac, 83 AD3dat 854; Matter of Kaur v Singh, 73 AD3d at 1178; Matter of Creighton vWhitmore, 71 AD3d at 1141; Matter of Robbins v Robbins, 48 AD3d at822; Matter of Phillips v Laland, 4 AD3d at 530). According, the Family Courtproperly, in effect, denied the petition, dismissed the proceeding, and vacated the orderof protection dated November 16, 2012. Dickerson, J.P., Chambers, Roman and Miller,JJ., concur.