| Matter of Abatantuno v Abatantuno |
| 2014 NY Slip Op 05327 [119 AD3d 779] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 In the Matter of Delisemarie Abatantuno,Respondent, v Michael A. Abatantuno, Appellant. |
Leonard J. Falcone, Hempstead, N.Y., for appellant.
In a family offense proceeding pursuant to Family Court Act article 8, Michael A.Abatantuno appeals from an order of protection of the Family Court, Nassau County(Stack, J.H.O.), dated October 22, 2013, which, after a hearing, and upon a finding, ineffect, that he committed the family offenses of criminal mischief in the fourth degreeand harassment in the second degree, directed him, inter alia, to stay away from thepetitioner and the parties' children except for parenting time as agreed to between theparties or pursuant to a court order until and including October 21, 2014.
Ordered that the order of protection is affirmed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence(see Family Ct Act § 832; Matter of Saldivar v Cabrera, 109 AD3d 831 [2013]; Matter of Parameswar vParameswar, 109 AD3d 473, 474 [2013]; Matter of Bazante v Bazante, 107 AD3d 707 [2013]). Thedetermination of whether a family offense was committed is a factual issue to be resolvedby the Family Court, and that court's determination regarding the credibility of witnessesis entitled to great weight on appeal and will not be disturbed unless clearly unsupportedby the record (see Matter ofWinfield v Gammons, 105 AD3d 753 [2013]; Matter of Jackson v Idlett, 103AD3d 723 [2013]; Matterof Kanterakis v Kanterakis, 102 AD3d 784, 785 [2013]). Here, although theFamily Court made certain credibility findings, it failed to state the facts that it deemedessential to its determination to grant the petition for an order of protection (seeCPLR 4213 [b]; Matter of Jose L.I., 46 NY2d 1024, 1025-1026 [1979]).However, remittal to the Family Court is not necessary because the record is sufficientfor this Court to conduct an independent review of the evidence (see Matter of JoseL.I., 46 NY2d at 1026; Matter of Son v Ramos, 117 AD3d 745 [2014]; Matter of Panico v Panico, 100AD3d 907, 908 [2012]). Upon such review, we conclude that the evidence adducedat the hearing established, by a preponderance of the evidence, that the appellantcommitted the family offenses of criminal mischief in the fourth degree and harassmentin the second degree, warranting the issuance of the order of protection (seeFamily Ct Act §§ 812 [1]; 832; Penal Law§§ 145.00 [1]; 240.26 [3]). Rivera, J.P., Sgroi, Cohen and Barros, JJ.,concur.