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In re Bah

Supreme Court of New York, Second Department

December 26, 2013

In the Matter of Patricia Bah, appellant,
v.
Mohammed Bah, respondent. Index No. O-1710-12

Robert Marinelli, New York, N.Y., for appellant.

David Moreno, Staten Island, N.Y., for respondent.

THOMAS A. DICKERSON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Richmond County (Mitek, Ct. Atty. Ref.), dated December 3, 2012, which, after a hearing, in effect, denied the petition, dismissed the proceeding, and vacated an order of protection dated November 16, 2012.

ORDERED that the order is affirmed, without costs or disbursements.

"In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, ' that the charged conduct was committed as alleged in the petition" (Matter of Cassie v Cassie, 109 A.D.3d 337, 340, quoting Family Ct Act § 832; see Matter of Testa v Strickland, 99 A.D.3d 917, 917). " The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court'" (Matter of Kaur v Singh, 73 A.D.3d 1178, 1178, quoting Matter of Creighton v Whitmore, 71 A.D.3d 1141, 1141; see Family Ct Act §§ 812, 832; Matter of Shields v Brown, 107 A.D.3d 1005, 1006; Matter of Yalvac v Yalvac, 83 A.D.3d 853, 854; Matter of Halper v Halper, 61 A.D.3d 687; Matter of Lallmohamed v Lallmohamed, 23 A.D.3d 562), "whose determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record'" (Matter of Kaur v Singh, 73 A.D.3d at 1178, quoting Matter of Creighton v Whitmore, 71 A.D.3d at 1141; see Matter of Shields v Brown, 107 A.D.3d at 1006; Matter of Yalvac v Yalvac, 83 A.D.3d at 854; Matter of Robbins v Robbins, 48 A.D.3d 822, 822; Matter of Phillips v Laland, 4 A.D.3d 529, 530).

Here, the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent committed the family offenses of menacing in the second degree or third degree (see Penal Law §§ 120.14, 120.15), criminal mischief in the fourth degree (see Penal Law § 145.00), harassment in the second degree (see Penal Law § 240.26), or disorderly conduct (see Penal Law § 240.20). The Family Court's determination that the petitioner's testimony was lacking in credibility, and that the respondent testified credibly, is entitled to great weight on appeal as it is not clearly unsupported by the record (see generally Matter of Shields v Brown, 107 A.D.3d at 1006; Matter of Yalvac v Yalvac, 83 A.D.3d at 854; Matter of Kaur v Singh, 73 A.D.3d at 1178; Matter of Creighton v Whitmore, 71 A.D.3d at 1141; Matter of Robbins v Robbins, 48 A.D.3d at 822; Matter of Phillips v Laland, 4 A.D.3d at 530). According, the Family Court properly, in effect, denied the petition, dismissed the proceeding, and vacated the order of protection dated November 16, 2012.

DICKERSON, J.P., CHAMBERS, ROMAN and MILLER, JJ., concur.


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