A.C. v. G.P.

CourtNew York Family Court
Citation2022 NY Slip Op 51148 (U)
Docket NumberDocket No. O-02931-21
PartiesIn the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act, A.C., Petitioner, v. G.P., Respondent.
Decision Date18 November 2022

Unpublished Opinion

Miriam E. Zakarin for Petitioner

Mark Steven Frey for Respondent

HASA A. KINGO, J.

In this proceeding brought under Article 8 of the Family Court Act respondent G.P. ("respondent"), through counsel moves to dismiss petitioner A.C.'s ("petitioner") petition following the close of petitioner's case-in-chief at fact-finding. Respondent argues that petitioner has failed to show, by a fair preponderance of the evidence, that respondent committed any qualifying family offenses. Petitioner, through her counsel opposes the motion by arguing that her petition must be viewed in a light most favorable. After considering the parties arguments on the record, and after a thorough review of the evidence at the fact-finding, including recordings of the proceedings and documents received in evidence that are incorporated by reference, respondent's motion is granted.

Background

Petitioner is the spouse of respondent and has children in common with respondent. On June 25, 2021, petitioner filed a family offense petition in the Family Court in New York County. After issue was joined and following several court conferences at which resolution could not be achieved, a fact-finding hearing was held on March 31, 2022, May 31 2022, June 17, 2022, September 9, 2022, and October 20, 2022. Petitioner's most prominent allegations within her petition, as testified to throughout the course of the fact-finding, relate to respondent purportedly trespassing on petitioner's property, stalking petitioner, and subjecting petitioner to physical attacks. To be sure petitioner testified to discrete interactions with respondent in July 2019, February 2020, and May 2021 that embody the gravamen of her petition. Petitioner testified that the first incident between her and respondent occurred at their marital residence in California in July 2019. Petitioner testified that in or about July 2019, petitioner and respondent were discussing their family when respondent grabbed petitioner by the neck, pushed petitioner into a wall, and then attempted to punch petitioner in the face. Petitioner further testified that thereafter, respondent went into a room, and slammed the door with such force that there was a notable crack in the door. Petitioner also testified that respondent shouted obscenities at petitioner during the exchange. Petitioner testified that she was fearful of respondent following this purported incident.

With respect to the second incident, petitioner testified that in or about February 2020, respondent unexpectedly showed up at petitioner's current residence at 15 West 72nd Street in New York City and represented that he was a resident within the building. Petitioner further testified that at some point petitioner and respondent had a discussion in the lobby of the building. Petitioner then testified that during their conversation, respondent got upset and tried force petitioner to exit the building with respondent. Petitioner states that respondent grabbed her arm with such force that petitioner had deep lacerations on her arm. Following this exchange, petitioner stated that she felt acute fear for her safety and well-being.

With respect to the third and final incident, petitioner testified that on or about May 31, 2021, petitioner was in front of her apartment building with her daughters at approximately 1:00 AM when respondent pushed himself into petitioner with such force that petitioner stumbled into one of petitioner and respondent's daughters. Thereafter, petitioner testified that she suffered bruising on her shoulder and hip and marks atop her hands. Petitioner further testified that she reported this incident to the police.

On cross-examination, respondent's counsel credibly called into question petitioner's statements regarding the first incident. To be sure, respondent's counsel adeptly challenged respondent's recollection of the incident, and highlighted that petitioner's testimony was not substantiated by any photographs of the purportedly cracked door. Moreover, despite petitioner's testimony that she lived in fear of respondent, respondent's counsel was able to place into evidence numerous exchanges between petitioner and respondent following the incident that revealed a cordial and convivial relationship.

Next, with respect the second incident, respondent's counsel introduced additional correspondence between petitioner and respondent that defied petitioner's assertions that she was fearful of respondent. For instance, the court received in evidence, Ex. P - a conversation between petitioner and respondent wherein petitioner and respondent cordially discussed pick-up of their daughter from school. Likewise, the court received in evidence Ex. K, a conversation wherein petitioner offered to pick up respondent from the airport when he traveled to New York in December 2019. On her direct examination, petitioner said did not see respondent between December 2019 and February 2020. However, on cross-examination, petitioner conceded that she had in fact seen respondent, as the documents received in evidence by the court corroborated.

On cross-examination, respondent's counsel also challenged petitioner's assertion that she was injured during an exchange with respondent in February 2020. To be sure, respondent's counsel highlighted that scratches that petitioner purportedly received during an altercation with respondent were well-healed. Petitioner also conceded that said pictures were taken several days after the alleged incident, even though on direct examination petitioner had testified the pictures had been taken shortly after the incident. Petitioner also appeared to concede that some of the marks could have been caused by her since she admitted to scratching herself from time to time.

With respect to the third and final incident, respondent's counsel confronted petitioner with respect to her claim that respondent had assaulted petitioner on May 31, 2021, by pushing himself into petitioner. Petitioner had testified that while she was walking with her two daughters next to her, she was pushed by respondent and fell. However, on cross-examination, respondent's counsel challenged petitioner by highlighting that her testimony that respondent threw his body backwards while squatting was anatomically improbable, if not impossible. Moreover, respondent's counsel questioned the location of petitioner's bruising on the front of her hand even through she claimed to have fallen forward. Though petitioner denied it, respondent's counsel appeared to suggest that petitioner's injuries had been caused by a bicycle accident rather than a fall precipitated by respondent's actions. Even so, respondent's counsel suggested that petitioner had failed to prove that respondent intended to cause any harm to petitioner, and highlighted that respondent was never prosecuted for this alleged incident.

Following petitioner's testimony, a porter and doorman in petitioner's building, James Karkoza, testified that he had seen respondent in petitioner's building in November 2020, and then "five or six months later." Although Karkoza described respondent as "suspicious," he conceded he did not believe that respondent was stalking petitioner, but rather "waiting" for petitioner.

After petitioner rested, respondent made the instant application to dismiss premised on petitioner's failure to meet her burden of showing, by a preponderance of the evidence, that respondent committed any qualifying family offenses against petitioner. Respondent highlighted that respondent did not stalk petitioner, did not harass petitioner insofar as the parties mutually communicated with one another, and did not assault petitioner insofar as respondent never intended to cause petitioner any harm. Petitioner opposed the motion.

Discussion

At a fact-finding hearing pursuant to Family Court Act article 8 the petitioner bears the burden of establishing the allegations in the petition by a "fair preponderance of the evidence" (Family Court Act § 832), and the Family Court's credibility determinations at a fact-finding hearing are entitled to great weight unless clearly unsupported by the record (see Matter of Creighton v. Whitmore, 71 A.D.3d 1141 [2d Dept. 2010]; Matter of Nusbaum v. Nusbaum, 59 A.D.3d 725 [2d Dept. 2009]; see also Matter of Crenshaw v. Thorpe-Crenshaw, 146 A.D.3d 951, 952 [2d Dept. 2017]; Matter of Zhuo Hong Zheng v. Hsin Cheng, 144 A.D.3d 1166, 1167 [2d Dept. 2016]; Matter of Kiani v. Kiani, 134 A.D.3d 1036, 1037 [2d Dept. 2015]; Matter of Tulshi v. Tulshi, 118 A.D.3d 716 [2d Dept. 2014]; Matter of Konstatine v. Konstatine, 107 A.D.3d 994 [2d Dept. 2013]). Where a petitioner fails to set forth that the respondent has committed a qualifying family offense, the petition may be dismissed (Lashlee v Lashlee, 161 A.D.3d 865, 866 [2d Dept 2018]). "Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear their testimony and observe their demeanor" (Matter of Ava A. [Steven A.], 179 A.D.3d 666, 669 [2d Dept. 2020]; see Matter of Magana v. Delph, 163 A.D.3d 673 [2d Dept. 2018]). Indeed, it has been said that the hearing court "has the best vantage point for evaluating the credibility of the witness[.]" (In re Everett C. v. Oneida P., 61 A.D.3d 489 [1st Dept 2009]).

Finally under Family Court Act §812 (1), a petition cannot be dismissed "solely on the basis that the...

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