

Matter of Mack v Richardson (2017 NY Slip Op 03517)





Matter of Mack v Richardson


2017 NY Slip Op 03517


Decided on May 3, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 3, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.


2016-03572
 (Docket No. O-26023/15)

[*1]In the Matter of Diane Mack, appellant,
vHarold Richardson, respondent.


Nicole Barnum, New York, NY, for appellant.
Leighton M. Jackson, New York, NY, for respondent.

DECISION & ORDER
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's motion, made at the close of the petitioner's case, to dismiss the petition for failure to make out a prima facie case, dismissed the petition.
ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, 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 former boyfriend, the respondent. The Family Court conducted a hearing on the petition and, at the conclusion of the petitioner's case, granted the respondent's motion to dismiss her petition for failure 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 AD3d 721, 725; see Family Ct Act § 832). " In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true 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, 74 AD3d 1208, 1209, quoting Gonzalez v Gonzalez, 262 AD2d 281, 282). Here, the Family Court failed to properly apply this standard. Viewing the petitioner's evidence in a light most favorable to her, and accepting the evidence as true, it established a prima facie case (see Matter of Prezioso v Prezioso, 79 AD3d 1043,1043-1044; Matter of Awoleke v Awoleke, 79 AD3d 743, 743; 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 prima facie case should have been denied.
CHAMBERS, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


