Blackett v. Blackett

MARK C. DILLON

Affirmed.
Joel Borenstein, Brooklyn, N.Y., for appellant. Janis A. Parazzelli, Floral Park, N.Y., for respondent.

Appeal from an order of the Family Court, Queens County (John M. Hunt, J.), dated May 20, 2013. 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 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Ct. 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; Matter of Yalvac v. Yalvac, 83 A.D.3d 853, 854, 920 N.Y.S.2d 689) , “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; Matter of Yalvac v. Yalvac, 83 A.D.3d at 854, 920 N.Y.S.2d 689).

Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent committed the family offense of harassment in the second degree. The Family Court's determination that the petitioner failed to establish that a family offense was committed against him was based on its credibility assessments, and is supported by the record ( see Matter of Streat v. Streat, 117 A.D.3d at 838, 985 N.Y.S.2d 720; Matter of Alonso v. Perdue, 112 A.D.3d 920, 920, 976 N.Y.S.2d 891; Matter of Amato v. Amato, 100 A.D.3d 988, 989, 954 N.Y.S.2d 464).

Accordingly, the Family Court properly denied the petition and dismissed the proceeding.

The petitioner's remaining contentions are not properly before this Court.