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Kobel v. Holiday

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


November 19, 2010

IN THE MATTER OF JAMES KOBEL, PETITIONER-RESPONDENT,
v.
RITA HOLIDAY, RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered September 11, 2009 in a proceeding pursuant to Family Court Act article 8. The order of protection directed respondent to refrain from offensive conduct against petitioner and the parties' child.

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: SMITH, J.P., LINDLEY, SCONIERS, PINE, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

In this proceeding pursuant to article 8 of the Family Court Act, respondent mother contends that Family Court erred in determining, following a fact-finding hearing, that she committed a family offense. We reject that contention. We conclude that the court properly found that petitioner father met his burden of establishing by a preponderance of the evidence that the mother committed the family offense of reckless endangerment in the second degree (see Family Ct Act § 812 [1]; Penal Law § 120.20; see generally Matter of Harrington v Harrington, 63 AD3d 1618, lv denied 13 NY3d 705), thus warranting the issuance of an order of protection, by lurching her car forward and stopping within inches of the father and the parties' child. Contrary to the further contention of the mother, the court's assessment of the credibility of the witnesses is entitled to great weight, and the court was entitled to credit the testimony of the father over that of the mother (see Matter of Scroger v Scroger, 68 AD3d 1777, lv denied 14 NY3d 705).

20101119

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