| Matter of Janczewski v Janczewski |
| 2017 NY Slip Op 05601 [152 AD3d 595] |
| July 12, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Lori A. Janczewski, Appellant, v AdamA. Janczewski, Respondent. |
Del Atwell, East Hampton, NY, for appellant.
Ray, Mitev & Associates, Miller Place, NY (Vesselin Mitev of counsel), forrespondent.
Appeal by the petitioner from an order of the Family Court, Suffolk County (Kerri N.Lechtrecker, Ct. Atty. Ref.), dated January 3, 2017. The order, upon the granting of that branch ofthe respondent's motion which was to dismiss all allegations of the petition other than thosealleging that the respondent had committed a family offense on March 2, 2016, for failure to statea cause of action, and upon the granting of the respondent's motion, made at the close of thepetitioner's case, to dismiss that branch of the petition which was based on the allegation that therespondent had committed a family offense on March 2, 2016, for failure to make a prima faciecase, dismissed the petition and vacated a temporary order of protection issued against therespondent.
Ordered that the order is modified, on the law, by deleting the provision thereof dismissingthat branch of the petition which was based on the allegation that the respondent had committedacts constituting the family offense of assault in the third degree on March 2, 2016, and vacatingthe temporary order of protection with regard to that allegation; as so modified, the order isaffirmed, without costs or disbursements, the respondent's motion to dismiss that branch of thepetition which was based on the allegation that the respondent had committed acts constitutingthe family offense of assault in the third degree on March 2, 2016, for failure to make a primafacie case is denied, the petition and temporary order of protection are reinstated only as to theallegation of assault in the third degree on March 2, 2016, and the matter is remitted to theFamily Court, Suffolk County, for a new fact-finding hearing and determination on that branch ofthe petition which was based on the allegation that the respondent had committed actsconstituting the family offense of assault in the third degree on March 2, 2016.
On July 28, 2016, the petitioner filed a family offense petition against the respondent, herhusband, alleging that he had committed acts of domestic violence against her. The Family Courtissued a temporary order of protection against the respondent dated July 28, 2016. Prior to thefact-finding hearing, the court granted the respondent's application to dismiss the petition forfailure to state a cause of action to the extent of dismissing all allegations of the petition otherthan those related to an incident that allegedly occurred on March 2, 2016. At the fact-findinghearing, at the close of the petitioner's case, the court granted the respondent's application todismiss that branch of the petition relating to the March 2, 2016 incident for failure to make aprima facie case, [*2]finding that the petitioner failed to show thatthe respondent's conduct fell within the ambit of the Family Court's jurisdiction under FamilyCourt Act § 812 (1). The petitioner appeals.
Contrary to the petitioner's contention, summary dismissal of so much of her family offensepetition other than the allegations related to the incident on March 2, 2016, was proper, as thoseallegations were devoid of specificity (see Family Ct Act §§ 812 [1];832; Matter of Davis v Venditto, 45AD3d 837, 838 [2007]; Matter ofMorisseau v Morisseau, 27 AD3d 651, 652 [2006]; Matter of Vasciannio vNedrick, 305 AD2d 420, 421 [2003]; Matter of Jones v Roper, 187 AD2d 593[1992]).
Nevertheless, the Family Court erred in determining that the petitioner failed to establish aprima facie case of assault in the third degree with respect to the incident alleged to haveoccurred on March 2, 2016. " 'In determining a motion to dismiss for failure to establisha prima facie case, the evidence must be accepted as true and given the benefit of everyreasonable inference which may be drawn therefrom . . . The question of credibilityis irrelevant, and should not be considered' " (Matter of Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2010],quoting Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999]; see Matter of Mack v Richardson, 150AD3d 740 [2017]). Here, the Family Court failed to properly apply this standard. Viewingthe petitioner's evidence in the light most favorable to her, and accepting the evidence as true, itestablished a prima facie case (see Penal Law § 120 [1]; Matter of Mackv Richardson, 150 AD3d at 740; Matter of Prezioso v Prezioso, 79 AD3d 1043, 1043-1044 [2010];Matter of Awoleke v Awoleke, 79AD3d 743, 743 [2010]; Matter of Ramroop v Ramsagar, 74 AD3d at 1209).
In light of the foregoing, we need not address the petitioner's remaining contentions. Rivera,J.P., Dillon, Connolly and Iannacci, JJ., concur.