| Matter of Oakes v Oakes |
| 2015 NY Slip Op 03367 [127 AD3d 1093] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Robert E. Oakes,Appellant, v Gail Oakes, Respondent. |
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.
Steven P. Forbes, Jamaica, N.Y., for respondent.
Appeal from an order of the Family Court, Queens County (Fran L. Lubow, J.), datedJuly 8, 2014. The order, upon the granting of the respondent's motion, made at the closeof the petitioner's case, to dismiss the petitions for failure to make out a prima facie case,dismissed the petitions.
Ordered that the order is reversed, on the law, without costs or disbursements, thepetitions are reinstated, and the matter is remitted to the Family Court, Queens County,for further proceedings in accordance herewith.
In 2010, the petitioner commenced a family offense proceeding against his sister, therespondent. In an order of fact-finding and disposition dated December 12, 2012(hereinafter the prior order), the Family Court, Queens County (John M. Hunt, J.),granted the petition after finding that the preponderance of the evidence established thatthe respondent committed acts constituting harassment in the first or second degree. Thecourt suspended judgment for a period of six months on condition that the respondentnot commit any further family offenses against the petitioner or interfere with his lawfuloccupancy of the home in which they both lived.
By petitions dated January 16, 2013, and September 25, 2013, respectively, thepetitioner alleged that the respondent had violated the prior order by, inter alia, changingthe locks at the subject premises and interfering with his personal belongings.
The Family Court (Fran L. Lubow, J.) held a hearing on the petitions, and at theclose of the petitioner's case, it granted the respondent's motion to dismiss the petitionsfor failure to make out a prima facie case. We reverse.
"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], quoting Gonzalez vGonzalez, 262 AD2d 281, 282 [1999]; see Matter of Mamantov v Mamantov, 86 AD3d 540, 541[2011]; Matter of Ramroop vRamsagar, 74 AD3d 1208, 1209 [2010]).
[*2] Here, the petitioner established, prima facie, that therespondent violated the prior order. The Family Court therefore erred when it granted therespondent's motion to dismiss the petitions for failure to establish a prima facie case.Accordingly, we reverse the order appealed from, reinstate the petitions, and remit thematter to the Family Court, Queens County, for a new fact-finding hearing and a newdetermination of the petitions thereafter (see Matter of Hagopian v Hagopian, 66 AD3d 1021[2009]).
The petitioner's remaining contentions are without merit or need not be reached inlight of our determination. Chambers, J.P., Dickerson, LaSalle and Barros, JJ.,concur.