In the Matter of Tatiana Mamantov v. Mamantov

• Decision Date: 05 July 2011
• Parties: In the Matter of Tatiana MAMANTOV, appellant,v.George MAMANTOV, respondent.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 540
927 N.Y.S.2d 140
2011 N.Y. Slip Op. 05810

In the Matter of Tatiana MAMANTOV, appellant,
v.
George MAMANTOV, respondent.

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

July 5, 2011.

[927 N.Y.S.2d 140]

Carl D. Birman, Mamaroneck, N.Y., for appellant.Andrew W. Szczesniak, White Plains, N.Y., for respondent.DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL and SHERI S. ROMAN, JJ.

[86 A.D.3d 541] In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals from an order of disposition of the Family Court, Westchester County (Klein, J.), dated September 30, 2010, which, upon granting the husband's motion, made at the close of her case, to dismiss the petition based upon her failure to establish a prima facie case, dismissed the petition.

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

“ ‘A family offense must be established by a fair preponderance of the evidence’ ” ( Matter of Lamparillo v. Lamparillo, 84 A.D.3d 1381, 1381, 924 N.Y.S.2d 548, quoting Matter of Thomas v. Thomas, 72 A.D.3d 834, 835, 898 N.Y.S.2d 495; see Family Ct. Act § 832). “In determining a motion to dismiss for failure to establish a

[927 N.Y.S.2d 141]

prima facie case, ‘the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom ... The question of credibility is irrelevant, and should not be considered’ ” ( Matter of Prezioso v. Prezioso, 79 A.D.3d 1043, 1043, 915 N.Y.S.2d 91, quoting Matter of Ramroop v. Ramsagar, 74 A.D.3d 1208, 1209, 902 N.Y.S.2d 422).

Here, in deciding the husband's motion to dismiss the petition for failure to establish a prima facie case, the Family Court employed an incorrect standard, finding that the wife failed to prove the allegations in the petition by clear and convincing evidence. Additionally, the Family Court erred in making credibility determinations. In spite of these errors, however, the Family Court properly granted the husband's motion. The wife alleged in her petition that the husband committed the family offense of aggravated harassment in the second degree ( see Penal Law § 240.26). However, accepting the evidence as true and giving her the benefit of every reasonable inference ( see Matter of Prezioso v. Prezioso, 79 A.D.3d at 1043, 915 N.Y.S.2d 91; Matter of Ramroop v. Ramsagar, 74 A.D.3d at 1209, 902 N.Y.S.2d 422), the wife failed to demonstrate, prima facie, that the...