| Matter of Brown v Brown |
| 2015 NY Slip Op 03156 [127 AD3d 969] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Antonia N. Brown,Appellant, v Cordell Omar Brown, Respondent. |
Mark Diamond, New York, N.Y., for appellant.
Appeal from an order of disposition of the Family Court, Queens County (DennisLebwohl, J.), dated June 17, 2014. The order of disposition, upon the granting of therespondent's motion, made at the close of the petitioner's case at a fact-finding hearing, todismiss the petition for failure to establish a prima facie case, dismissed the petition.
Ordered that the order of disposition is reversed, on the law, without costs ordisbursements, the motion to dismiss the petition is denied, the petition is reinstated, andthe matter is remitted to the Family Court, Queens County, for further proceedings inaccordance herewith.
"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" (Matter ofStephens v Stephens, 106 AD3d 748, 748 [2013] [internal quotation marksomitted]; see Matter ofDeGasero v DeGasero, 95 AD3d 883 [2012]; Matter of Opray v Fitzharris,84 AD3d 1092, 1093 [2011]).
In applying this standard, we find that the petitioner established, prima facie, that therespondent committed the family offenses of assault in the third degree, harassment inthe second degree, menacing in the third degree, and criminal obstruction of breathing orcirculation (see Family Ct Act § 812 [1]; Penal Law§§ 120.00 [1], [2]; 240.26 [1]; 120.15; 121.11 [b]). Accordingly, theFamily Court should have denied the respondent's motion, made at the close of thepetitioner's case, to dismiss the petition for failure to establish a prima facie case.
The petitioner's remaining contentions are either without merit or not properly beforethis Court. Dillon, J.P., Dickerson, Duffy and Barros, JJ., concur.