| Matter of Buskey v Buskey |
| 2015 NY Slip Op 08161 [133 AD3d 655] |
| November 12, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of George B. Buskey,Appellant, v Bernard R. Buskey, Respondent. |
Diana H. Kelly, Jamaica, N.Y., for appellant.
Michael E. Lipson, Jericho, N.Y., for respondent.
Appeals from two orders of the Family Court, Queens County (Fran L. Lubow, J.),dated February 11, 2014, and June 18, 2014, respectively. The order dated February 11,2014, insofar as appealed from, after a hearing, in effect, denied those branches of thepetition which sought a finding that the respondent committed the family offenses ofassault in the third degree and harassment in the second degree on August 22, 2013. Theorder dated June 18, 2014, denied the petitioner's application for an order directing therespondent to pay the petitioner restitution.
Ordered that the order dated February 11, 2014, is affirmed insofar as appealed from,without costs or disbursements; and it is further,
Ordered that the order dated June 18, 2014, is affirmed, without costs ordisbursements.
"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 Matterof Riordan v Riordan, 128 AD3d 704 [2015]; Matter of Musheyev vMusheyev, 126 AD3d 800 [2015]). The determination of whether a familyoffense was committed is generally a factual issue to be resolved by the Family Court (see Matter of Campbell vCampbell, 123 AD3d 1123, 1124 [2014]; Matter of Maiorino v Maiorino, 107 AD3d 717, 717[2013]; Matter of Jackson vIdlett, 103 AD3d 723, 723 [2013]). The court's determination regarding thecredibility of witnesses is entitled to great weight on appeal and will not be disturbed ifsupported by the record (see Matter of Maiorino v Maiorino, 107 AD3d at717).
Contrary to the petitioner's contention, the evidence proffered at the hearing wasinsufficient to establish by a fair preponderance of the evidence that the respondentcommitted the family offense of assault in the third degree on August 22, 2013. As isrelevant here, a person is guilty of assault in the third degree when "[w]ith intent to causephysical injury to another person, he [or she] causes such injury to such person" (PenalLaw § 120.00 [1]), or when "[h]e [or she] recklessly causes physical injuryto another person" (Penal Law § 120.00 [2]). Here, the respondent'sconduct does not allow a factfinder to rationally infer that the respondent intended tocause physical [*2]injury to the petitioner (see Peoplev Henderson, 92 NY2d 677 [1999]; Matter of Wanji W., 277 AD2d 243, 244[2000]; Matter of Kisha J., 225 AD2d 549 [1996]; People v Facey, 115AD2d 11 [1986], affd 69 NY2d 836 [1987]). Moreover, the evidence wasinsufficient to establish that the respondent consciously disregarded a substantial andunjustifiable risk (see Penal Law § 15.05 [3]).
Contrary to the petitioner's contention, the evidence proffered at the hearing wasinsufficient to establish by a fair preponderance of the evidence that the respondentcommitted the family offense of harassment in the second degree on August 22, 2013. Asis relevant here, a person is guilty of harassment in the second degree when, with intentto harass, annoy, or alarm another person, "[h]e or she strikes, shoves, kicks or otherwisesubjects such other person to physical contact, or attempts or threatens to do the same"(Penal Law § 240.26 [1]). The Family Court was presented with sharplyconflicting testimony as to whether the respondent committed the family offense ofharassment in the second degree. The Family Court's determination that the petitionerfailed to establish that the respondent committed the family offense of harassment in thesecond degree on August 22, 2013, was based on its credibility assessments and issupported by the record (seeMatter of Blackett v Blackett, 123 AD3d 923, 924 [2014]; Matter of Streat v Streat, 117AD3d 837, 838 [2014]; Matter of Alonso v Perdue, 112 AD3d 920, 920 [2013]; Matter of Amato v Amato, 100AD3d 988, 989 [2012]).
In light of the foregoing, the Family Court properly denied the petitioner'sapplication for an order directing the respondent to pay the petitioner restitution inconnection with the incident on August 22, 2013 (see Family Ct Act§ 841 [e]). Rivera, J.P., Dillon, Chambers and LaSalle, JJ., concur.