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Alessio v. Burch

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 12, 2010

IN THE MATTER OF JENNIFER ALESSIO, PETITIONER-APPELLANT,
v.
HAROLD BURCH, RESPONDENT-RESPONDENT.

Appeal from an order of the Family Court, Erie County (Rosalie Bailey, J.), entered November 19, 2009 in a proceeding pursuant to Family Court Act article 8. The order dismissed the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: MARTOCHE, J.P., CENTRA, CARNI, LINDLEY, AND PINE, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Erie County, for a new hearing on the petition.

Memorandum

Petitioner appeals from an order dismissing her family offense petition pursuant to Family Court Act article 8 based on Family Court's determination that petitioner's testimony at the hearing on the petition was not credible. We agree with petitioner that, because the transcript of the hearing includes only one page of her direct examination, meaningful appellate review of the pivotal basis for the court's determination, i.e., that petitioner was not credible, is not possible (see White v Fischer, 73 AD3d 1372, 1373; see also Matter of Cobrin [Telecom Consulting Group NE Corp.-Commissioner of Labor], 36 AD3d 1166, 1166-1167). We therefore are compelled to reverse the order and remit the matter for a new hearing on the petition (see Weckstein v Breitbart, 111 AD2d 6, 8; see generally Matter of Jordal v Jordal, 193 AD2d 1102).

20101112

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