Opinion
2012-05-1
In the Matter of Rosanne DeGASERO, respondent, v. Philip DeGASERO, appellant.
Glen A. Suarez, P.C., Huntington, N.Y., for appellant. Del Atwell, East Hampton, N.Y., for respondent.
Glen A. Suarez, P.C., Huntington, N.Y., for appellant. Del Atwell, East Hampton, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Philip DeGasero appeals from an order of protection of the Family Court, Suffolk County (Burke, Ct.Atty.Ref.), dated April 6, 2011, which, upon the denial of his motion to dismiss the petition for failure to establish a prima facie case, and upon a finding, made after a hearing, that he committed the family offense of disorderly conduct, directed him, inter alia, to refrain from threatening Rosanne DeGasero.
ORDERED that the order of protection is affirmed, without costs or disbursements.
“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, *896 and should not be considered” ( Gonzalez v. Gonzalez, 262 A.D.2d 281, 282, 691 N.Y.S.2d 122 [internal citation omitted]; see Matter of Ramroop v. Ramsagar, 74 A.D.3d 1208, 1209, 902 N.Y.S.2d 422). The Family Court applied the correct standard in denying the appellant's motion to dismiss, as the evidence presented by the petitioner, when viewed in the light most favorable to her, established prima facie that the appellant committed the family offense of disorderly conduct.
Moreover, “[t]he determination of whether a family offense was committed is a factual issue to be resolved by the hearing court ... and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal” ( Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 1141, 898 N.Y.S.2d 585 [internal citations omitted]; see Family Ct. Act §§ 812, 832; Matter of Halper v. Halper, 61 A.D.3d 687, 875 N.Y.S.2d 916; Matter of Gray v. Gray, 55 A.D.3d 909, 867 N.Y.S.2d 110; Matter of Lallmohamed v. Lallmohamed, 23 A.D.3d 562, 806 N.Y.S.2d 622). The Family Court's determination that the appellant committed the family offense of disorderly conduct was based upon its assessment of the credibility of the parties and an eyewitness, and is supported by the record ( see Matter of Richardson v. Richardson, 80 A.D.3d 32, 44, 910 N.Y.S.2d 149). Accordingly, we decline to disturb the Family Court's determination.