Opinion
06-22-2016
In the Matter of Kevin K. MATHESON, appellant, v. Edel M. MATHESON, respondent.
Mark Brandys, New York, NY, for appellant. Janis A. Parazzelli, Floral Park, NY, for respondent.
Mark Brandys, New York, NY, for appellant.
Janis A. Parazzelli, Floral Park, NY, for respondent.
Opinion Appeal from an order of the Family Court, Kings County (Leticia M. Ramirez, J.), dated January 15, 2015. The order, after a hearing, dismissed with prejudice the petitioner's family offense petition against the respondent.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, his wife, alleging, inter alia, that she committed the family offense of assault in the third degree by striking him about the head and face with her fists. Following a fact-finding hearing, the Family Court determined that the credible evidence failed to support a finding that the respondent committed a family offense, and dismissed the petition with prejudice.
In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Buskey v. Buskey, 133 A.D.3d 655, 20 N.Y.S.3d 108 ; Matter of Cassie v. Cassie, 109 A.D.3d 337, 969 N.Y.S.2d 537 ; Matter of Khan–Soleil v. Rashad, 108 A.D.3d 544, 969 N.Y.S.2d 104 ). Whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determinations as to credibility issues are entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record (see Matter of Niyazova v. Shimunov, 134 A.D.3d 1122, 23 N.Y.S.3d 277 ; Matter of Goldring v. Sprei, 121 A.D.3d 894, 994 N.Y.S.2d 670 ; Matter of Messana v. Messana, 115 A.D.3d 860, 982 N.Y.S.2d 346 ).
Contrary to the petitioner's contention, the Family Court did not err in finding that the credible evidence failed to establish that the respondent committed the family offense of assault in the third degree (see Penal Law § 120.00 ). The court's credibility determinations are supported by the record, and we discern no basis for disturbing the order dismissing the petition (see Matter of Little v. Renz, 137 A.D.3d 916, 27 N.Y.S.3d 184 ; Matter of Buskey v. Buskey, 133 A.D.3d 655, 20 N.Y.S.3d 108 ; Matter of Goldring v. Sprei, 121 A.D.3d 894, 994 N.Y.S.2d 670 ).
The petitioner's remaining contention is without merit.
Accordingly, the Family Court properly dismissed the family offense petition with prejudice.
MASTRO, J.P., AUSTIN, SGROI and MALTESE, JJ., concur.