

Matter of Cole v Muirhead (2015 NY Slip Op 01632)





Matter of Cole v Muirhead


2015 NY Slip Op 01632


Decided on February 25, 2015


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 February 25, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
BETSY BARROS, JJ.


2014-05273
 (Docket No. O-1718-14)

[*1]In the Matter of Sonia M. Cole, appellant, 
vJunior H. Muirhead, respondent.


Elliot Green, Brooklyn, N.Y., for appellant.
Robin Stone Einbinder, Jamaica, N.Y., for respondent.

DECISION & ORDER
Appeal from an order of the Family Court, Queens County (Ronald E. Richter, J.), dated April 8, 2014. The order, after a hearing, denied the family offense petition for failure to prove a family offense by a preponderance of the evidence, and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
"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 alleged in the petition" (Matter of Cassie v Cassie, 109 AD3d 337, 340, quoting Family Ct Act § 832; see Matter of Blackett v Blackett, 123 AD3d 923; Matter of Streat v Streat, 117 AD3d 837, 837). " The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court'" (Matter of Kaur v Singh, 73 AD3d 1178, 1178, quoting Matter of Creighton v Whitmore, 71 AD3d 1141, 1141; see Family Ct Act §§ 812, 832; Matter of Blackett v Blackett, 123 AD3d at 923), "whose  determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record'" (Matter of Kaur v Singh, 73 AD3d at 1178, quoting Matter of Creighton v Whitmore, 71 AD3d at 1141; see Matter of Blackett v Blackett, 123 AD3d at 923; Matter of Tulshi v Tulshi, 118 AD3d 716).
Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent committed the subject family offenses. The Family Court's determination that the petitioner failed to establish that a family offense was committed against her was based on its credibility assessments, and is supported by the record (see Matter of Blackett v Blackett, 123 AD3d at 923; Matter of Streat v Streat, 117 AD3d at 838).
Accordingly, the Family Court properly denied the petition and dismissed the proceeding.
RIVERA, J.P., AUSTIN, ROMAN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




