Belkis N. v. Gilberto N., 7313

• Decision Date: 11 October 2018
• Docket Number: 7313
• Citation: 83 N.Y.S.3d 40 (Mem),165 A.D.3d 489
• Parties: In re BELKIS N., Petitioner-Appellant, v. GILBERTO N., Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 489

83 N.Y.S.3d 40 (Mem)

In re BELKIS N., Petitioner-Appellant,

v.GILBERTO N., Respondent-Respondent.

7313

Supreme Court, Appellate Division, First Department, New York.

ENTERED: OCTOBER 11, 2018

Beth E. Goldman, New York Legal Assistance Group, New York (Ione K. Curva of counsel), for appellant.

Kenneth M. Tuccillo, Hastings on Hudson, for respondent.

Friedman, J.P., Gische, Kapnick, Kahn, Oing, JJ.

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about August 30, 2017, which, after a hearing, dismissed the petition seeking an order of protection against respondent, unanimously affirmed, without costs.

Petitioner failed to establish by a preponderance of the evidence that respondent committed acts warranting an order of protection in her favor, particularly in light of the court's finding that none of the testimony was credible (see Family Court Act § 832 ; Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ). The record shows that petitioner, while represented by counsel, withdrew a prior family offense petition after she and respondent had agreed that they would go their separate ways. It also shows that there were no incidents between petitioner and respondent after the date that petitioner vacated the premises.

Given the fact that the root of the family disturbance had dissipated on its own, Family Court providently exercised its discretion in finding that an order of protection was not warranted. We reject petitioner's suggestion that this Court should substitute its own findings for that of the Family Court, because it cannot be said that Family Court's determination could not be reached under any fair interpretation of the evidence (see Yoba v. Yoba, 183 A.D.2d 418, 583 N.Y.S.2d 393 [1st Dept. 1992] ).

Furthermore, petitioner's contention that the Family Court was biased against her is unpreserved, and we decline to review in the interest of justice. In any event, the record fails to support her claim.