| Matter of Hon v Tin Yat Chin |
| 2014 NY Slip Op 03684 [117 AD3d 946] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jean Hon, Respondent, v TinYat Chin, Appellant. |
Helene Chowes, New York, N.Y., for appellant.
Frederica L. Miller, New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Tin Yat Chinappeals from an order of protection of the Family Court, Queens County (Lebwohl, J.),dated January 23, 2013, which, after a hearing, and upon a finding that he committed thefamily offenses of disorderly conduct, harassment in the first degree, menacing in thesecond degree, and reckless endangerment in the second degree, directed him, inter alia,to stay away from the petitioner until and including January 23, 2015.
Ordered that the order of protection is affirmed, without costs or disbursements.
"The Family Court is a court of limited jurisdiction and cannot exercise powersbeyond those granted to it by statute" (Matter of Welch v Lyman, 100 AD3d 642, 643 [2012]).Pursuant to Family Court Act § 812, the Family Court has concurrentjurisdiction with the criminal courts over proceedings concerning certain criminal actsoccurring "between spouses or former spouses, or between parent and child or betweenmembers of the same family or household" (Family Ct Act § 812 [1]). Forpurposes of Family Court Act article 8, "members of the same family or household"include "persons related by consanguinity or affinity" (Family Ct Act § 812[1] [a]). The appellant concedes that he is the uncle of the petitioner. Thus, contrary tothe appellant's contention, he and the petitioner are "members of the same family orhousehold," and the Family Court had subject matter jurisdiction over thisproceeding.
In a family offense proceeding, the allegations asserted in a petition seeking theissuance of an order of protection must be supported by "a fair preponderance of theevidence" (Family Ct Act § 832). 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 (see Matter of Gray v Gray, 55AD3d 909, 909 [2008]; Matter of Kraus v Kraus, 26 AD3d 494, 495 [2006]). Whilethe record does not support a determination that the appellant committed the familyoffense of reckless endangerment in the second degree against the petitioner, even if hecommitted that offense against other members of the subject household, a fairpreponderance of the credible [*2]evidence supports theFamily Court's determination that the appellant committed the family offenses ofmenacing in the second degree and harassment in the first degree against the petitioner,as well as disorderly conduct, thus warranting the issuance of an order of protection (see Matter of Banks v Opoku,109 AD3d 470, 470 [2013]; Matter of Nettles v Fearrington, 95 AD3d 1131, 1131[2012]; Matter of Gray v Gray, 55 AD3d at 909-910; Matter of Rankoth v Sloan, 44AD3d 863, 864 [2007]; Matter of Onuoha v Onuoha, 28 AD3d 563, 564[2006]).
The appellant's remaining contentions are without merit. Dillon, J.P., Balkin, Millerand Maltese, JJ., concur.