Opinion
16258-, 16258A Dkt. Nos. O-18658/19, V-18657/19, V-18655/19, V-18656/19, V-01953/20, V-01954/20, V-01955/20 Case Nos. 2021-02135, 2021-02136, 2021-03103, 2021-03104, 2021-03105
09-27-2022
In the Matter of ANY G., Petitioner-Respondent, v. AYMAN H., Respondent-Appellant. Ayman H., Petitioner-Appellant, v. Any G., Respondent-Respondent.
Joel B. Mayer, New York, for appellant. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent. The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child R.H. Kenneth M. Tuccillo, Hastings on Hudson, attorney for the children Mustafah H. and Nermin H.
Joel B. Mayer, New York, for appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent.
The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child R.H.
Kenneth M. Tuccillo, Hastings on Hudson, attorney for the children Mustafah H. and Nermin H.
Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.
Orders, Family Court, Bronx County (Ariel D. Chesler, J.), entered, after trial, on or about May 18, 2021 and August 6, 2021, which granted a five-year stay away order of protection in favor of petitioner mother Any G. and the subject children except to effectuate court ordered visitation; amended order of fact-finding and disposition, same court and Justice, entered on or about May 19, 2021, which found the mother's petition supported by a preponderance of the evidence and aggravating circumstances; and orders, same court and Justice, entered on or about August 6, 2021, which, inter alia, denied the father's petition, awarded the mother sole physical and legal custody, and granted the father supervised visitation, unanimously affirmed, without costs.
The father's arguments that Family Court improperly granted the mother leave to amend her original family offense petition, are unpreserved. In any event, his arguments are unavailing. At the time the court granted the mother such leave during proceedings on November 17, 2020, father's counsel did not object and, to the contrary, agreed to wait to serve a bill of particulars until after he had seen the amended petition. While he contends leave was granted on the eve of trial, trial did not commence until February 2021. Moreover, the father fails to show how he was prejudiced by the amendment (see Annette R. v. Dakiem D. , 203 A.D.3d 673, 165 N.Y.S.3d 70 [1st Dept. 2022] ). His conclusory claim that the court improperly admitted the amended petition into evidence is also unavailing and is belied by the record.
The court's credibility assessments are entitled to great deference on appeal (see Matter of Melind M. v. Joseph P. , 95 A.D.3d 553, 555, 944 N.Y.S.2d 82 [1st Dept. 2012] ). The hearing/trial court has the best vantage point for evaluating the credibility of the witnesses. Its determinations should therefore not be set aside unless it lacks a sound and substantial evidentiary basis (see Matter of Everett C. v. Oneida P. , 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ). We find no basis to disturb Family Court's determination that the mother testified honestly and consistently as to the father's controlling and abusive conduct towards her and the subject children.
The father's argument that there should have been a dispositional hearing is also without merit. This Court has held that "[t]here is no explicit statutory requirement of a dispositional hearing in article 8 proceedings," ( Matter of Rosa N. v. Luis F. , 166 A.D.3d 451, 453, 87 N.Y.S.3d 155 [1st Dept. 2018] ; see also Matter of Hazel P.R. v. Paul J.P. , 34 A.D.3d 307, 308, 824 N.Y.S.2d 628 [1st Dept. 2006] ). The father does not indicate that he requested such a hearing during proceedings before Family Court and does not explain what purpose such a hearing would have served in this case.
Finally, respondent father's arguments concerning Domestic Relations Law § 76-c are not properly before this Court. The record on appeal does not include a notice of appeal from the September 19, 2019 Family Court order memorializing that decision (see Matter of Annette R. v. Dakiem D. , 203 A.D.3d at 674, 165 N.Y.S.3d 70 ). We have considered the father's remaining arguments and find them unavailing.