Matter of Johnson v. Johnson , 146 A.D.3d 954 ( 2017 )

Matter of Johnson v Johnson (2017 NY Slip Op 00470)

Matter of Johnson v Johnson

2017 NY Slip Op 00470

Decided on January 25, 2017

Appellate Division, Second Department

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.

Decided on January 25, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
BETSY BARROS, JJ.

2015-10639
(Docket No. O-23771-13)

[*1]In the Matter of Everette Johnson, appellant,

v

Gary Johnson, respondent.

Olga J. Rodriguez, Forest Hills, NY, for appellant.

Linda C. Braunsberg, Staten Island, NY, for respondent.

DECISION & ORDER

Appeal by the petitioner from an order of the Family Court, Queens County (Anne-Marie Jolly, J.), dated October 5, 2015. The order, after a hearing, in effect, denied the petitioner's family offense petition and dismissed the proceeding.

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

The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, his brother, alleging, inter alia, that the respondent committed the family offenses of assault in the third degree, harassment in the second degree, and disorderly conduct. After a hearing, the Family Court, in effect, denied the petition and dismissed the proceeding.

The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Davis v Wright, 140 AD3d 753, 754; Matter of Giresi-Palazzolo v Palazzolo, 127 AD3d 752, 752; Matter of Tulshi v Tulshi, 118 AD3d 716, 716; Matter of Cassie v Cassie, 109 AD3d 337, 340). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record" (Matter of Richardson v Richardson, 80 AD3d 32, 43-44; see Matter of Davis v Wright, 140 AD3d at 754; Matter of Giresi-Palazzolo v Palazzolo, 127 AD3d at 752; Matter of Tulshi v Tulshi, 118 AD3d at 716; Matter of Bah v Bah, 112 AD3d 921, 922).

Here, the Family Court properly determined that the petitioner failed to establish, by a preponderance of the evidence, that the respondent committed a family offense (see Matter of Graham v Rawley, 140 AD3d 765, 767-768; Matter of Davis v Wright, 140 AD3d at 754; Matter of Bah v Bah, 112 AD3d at 922; Matter of Richardson v Richardson, 80 AD3d at 44). The court's credibility determination is supported by the record, and we discern no basis for disturbing it (see Matter of Davis v Wright, 140 AD3d at 754; Matter of Giresi-Palazzolo v Palazzolo, 127 AD3d at 752; Matter of Tulshi v Tulshi, 118 AD3d at 716; Matter of Bah v Bah, 112 AD3d at 922; Matter of [*2]Richardson v Richardson, 80 AD3d at 44). Accordingly, the court properly, in effect, denied the petition and dismissed the proceeding.

CHAMBERS, J.P., AUSTIN, HINDS-RADIX and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court