Musheyev v. Musheyev

Appeal from an order of protection of the Family Court, Queens County (Ronald E. Richter, J.), dated July 14, 2014. The order of protection, after a fact-finding and dispositional hearing, inter alia, directed David Musheyev to refrain from assaulting and harassing Elina Musheyev.

ORDERED that the order of protection 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 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Court Act § 832; see Matter of Streat v. Streat, 117 A.D.3d 837, 837, 985 N.Y.S.2d 720; Matter of Marte v. Caraballo, 116 A.D.3d 1050, 1050, 983 N.Y.S.2d 881; Matter of Testa v. Strickland, 99 A.D.3d 917, 917, 951 N.Y.S.2d 910). “ ‘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 A.D.3d 1178, 1178, 900 N.Y.S.2d 895, quoting Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 1141, 898 N.Y.S.2d 585; see Family Ct. Act §§ 812, 832; Matter of Streat v. Streat, 117 A.D.3d at 837, 985 N.Y.S.2d 720; Matter of Marte v. Caraballo, 116 A.D.3d at 1050, 983 N.Y.S.2d 881), “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 A.D.3d at 1178, 900 N.Y.S.2d 895, quoting Matter of Creighton v. Whitmore, 71 A.D.3d at 1141, 898 N.Y.S.2d 585; see Matter of Streat v. Streat, 117 A.D.3d at 837, 985 N.Y.S.2d 720; Matter of Marte v. Caraballo, 116 A.D.3d at 1050, 983 N.Y.S.2d 881). Here, contrary to the appellant's contention, a fair preponderance of the credible evidence supports the Family Court's determination that he committed the family offenses of attempted assault in the third degree and harassment in the second degree, warranting the issuance of an order of protection against him ( see Matter of Garbarino v. Garbarino, 120 A.D.3d 578, 579, 990 N.Y.S.2d 853; Matter of Oakes v. Oakes, 115 A.D.3d 956, 957, 982 N.Y.S.2d 532; Matter of Harry v. Harry, 115 A.D.3d 858, 858, 982 N.Y.S.2d 379; Matter of Santiago v. Friedman, 35 A.D.3d 482, 482, 824 N.Y.S.2d 723). The Family Court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of the petitioner ( see Matter of Saldivar v. Cabrera, 109 A.D.3d 831, 832, 971 N.Y.S.2d 310; see also Matter of Krasnova v. Krasnov, 83 A.D.3d 940, 941, 920 N.Y.S.2d 727). We discern no basis to disturb the Family Court's determination.