Opinion
12-02-2015
In the Matter of Nelly SEALY, appellant, v. Grantley SEALY, respondent.
Cheryl Gammone, Staten Island, N.Y., for appellant. Jonathan H. Shim, Jamaica, N.Y., for respondent.
Cheryl Gammone, Staten Island, N.Y., for appellant.
Jonathan H. Shim, Jamaica, N.Y., for respondent.
Opinion
Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated October 31, 2014. The order, upon the granting of the husband's motion, made at the close of the wife's case at a fact-finding hearing, to dismiss the petition for failure to make out a prima facie case, dismissed the petition.
ORDERED that the order is affirmed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence (see Family Ct. Act § 832; Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 986 N.Y.S.2d 350; Matter of Khan–Soleil v. Rashad, 108 A.D.3d 544, 969 N.Y.S.2d 104; Matter of Thomas v. Thomas, 72 A.D.3d 834, 898 N.Y.S.2d 495). 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 (see Matter of Oakes v. Oakes, 127 A.D.3d 1093, 7 N.Y.S.3d 487; Matter of Mamantov v. Mamantov, 86 A.D.3d 540, 541, 927 N.Y.S.2d 140). Contrary to the wife's contention, accepting the evidence proffered in support of her petition as true and giving it the benefit of every reasonable inference, it failed to establish, prima facie, that the husband committed the family offenses of harassment in the second degree and disorderly conduct (see Matter of Goldring v. Sprei, 121 A.D.3d 894, 895, 994 N.Y.S.2d 670; Matter of Stephens v. Stephens, 106 A.D.3d 748, 964 N.Y.S.2d 912; Matter of Sellers v. Sellers–Boykin, 72 A.D.3d 832, 898 N.Y.S.2d 466).
RIVERA, J.P., LEVENTHAL, MILLER and DUFFY, JJ., concur.