Opinion
2018–04629 Docket No. O–28698–17
01-23-2019
In the Matter of Melissa STRAIGHT, Appellant, v. Donovan SCHROUTER, Respondent.
Marion C. Perry, Brooklyn, NY, for appellant. Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent.
Marion C. Perry, Brooklyn, NY, for appellant.
Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the order is affirmed, without costs or disbursements.The petitioner and the respondent have a child in common. On October 19, 2017, the petitioner filed a petition alleging that the respondent had committed various family offenses, including harassment in the first and second degrees. After the petitioner testified at the fact-finding hearing, the Family Court granted the respondent's motion to dismiss the petition for failure to establish a prima facie case. The petitioner appeals.
Contrary to the petitioner's contention, she was not deprived of the right to counsel (see Family Ct Act § 262[a][ii] ) since she was represented at the hearing by the same counsel who was also representing the petitioner on a family offense petition she filed in 2015 (cf. Matter of Pugh v. Pugh, 125 A.D.3d 663, 664, 2 N.Y.S.3d 608 ; Matter of Collier v. Norman, 69 A.D.3d 936, 937, 892 N.Y.S.2d 793 ; Matter of Brown v. Wood, 38 A.D.3d 769, 770, 834 N.Y.S.2d 196 ).
The petitioner's further contention that the Family Court was biased against her is unpreserved for appellate review and, in any event, without merit (see Matter of Bowe v. Bowe, 124 A.D.3d 645, 646, 1 N.Y.S.3d 301 ).
"A family offense must be established by a fair preponderance of the evidence" ( Matter of Thomas v. Thomas, 72 A.D.3d 834, 835, 898 N.Y.S.2d 495 ; see Family Ct. Act § 832 ; Matter of Mayers v. Thompson, 145 A.D.3d 1010, 1010, 42 N.Y.S.3d 864 ; Matter of Sealy v. Sealy, 134 A.D.3d 725, 725, 19 N.Y.S.3d 768 ). "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" ( Matter of Mamantov v. Mamantov, 86 A.D.3d 540, 541, 927 N.Y.S.2d 140 ; see Matter of Acevedo v. Acevedo, 145 A.D.3d 773, 774, 43 N.Y.S.3d 443 ; Matter of Oakes v. Oakes, 127 A.D.3d 1093, 1093, 7 N.Y.S.3d 487 ). Here, 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 respondent committed the family offenses of harassment in the first or second degrees (see Matter of Sealy v. Sealy, 134 A.D.3d at 726, 19 N.Y.S.3d 768 ; 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, 748, 964 N.Y.S.2d 912 ).
The petitioner's remaining contentions are either unpreserved for appellate review or without merit.
BALKIN, J.P., CHAMBERS, MILLER and IANNACCI, JJ., concur.