| Matter of Mack v Richardson |
| 2017 NY Slip Op 03517 [150 AD3d 740] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Diane Mack, Appellant, v HaroldRichardson, Respondent. |
Nicole Barnum, New York, NY, for appellant.
Leighton M. Jackson, New York, NY, for respondent.
Appeal by the petitioner from an order of the Family Court, Kings County (Sharon A.Bourne-Clarke, J.), dated March 29, 2016. The order, upon the granting of the respondent'smotion, made at the close of the petitioner's case, to dismiss the petition for failure to make out aprima facie case, dismissed the petition.
Ordered that the order is reversed, on the law, without costs or disbursements, the petition isreinstated, the motion is denied, and the matter is remitted to the Family Court, Kings County,for a new fact-finding hearing and determination on the petition.
In 2015, the petitioner commenced this family offense proceeding against her formerboyfriend, the respondent. The Family Court conducted a hearing on the petition and, at theconclusion of the petitioner's case, granted the respondent's motion to dismiss her petition forfailure to establish a prima facie case. We reverse.
"A family offense must be established by a fair preponderance of the evidence" (Matter of Sealy v Sealy, 134 AD3d725, 725 [2015]; see Family Ct Act § 832). " 'In determining amotion to dismiss for failure to establish a prima facie case, the evidence must be accepted astrue and given the benefit of every reasonable inference which may be drawn therefrom. . . The question of credibility is irrelevant, and should not be considered' "(Matter of Ramroop v Ramsagar, 74AD3d 1208, 1209 [2010], quoting Gonzalez v Gonzalez, 262 AD2d 281, 282[1999]). Here, the Family Court failed to properly apply this standard. Viewing the petitioner'sevidence in a light most favorable to her, and accepting the evidence as true, it established aprima facie case (see Matter of Preziosov Prezioso, 79 AD3d 1043, 1043-1044 [2010]; Matter of Awoleke v Awoleke, 79 AD3d 743, 743 [2010];Matter of Ramroop v Ramsagar, 74 AD3d at 1209).
The respondent's remaining contention is without merit.
Accordingly, the respondent's motion to dismiss the petition for failure to establish a primafacie case should have been denied. Chambers, J.P., Roman, Miller and Connolly, JJ.,concur.