Konstatine v. Konstatine
| Decision Date | 26 June 2013 |
| Parties | In the Matter of Ankica KONSTATINE, appellant, v. Rade KONSTATINE, Jr., respondent. |
| Court | New York Supreme Court — Appellate Division |
107 A.D.3d 994
968 N.Y.S.2d 166
2013 N.Y. Slip Op. 04806
In the Matter of Ankica KONSTATINE, appellant,
v.
Rade KONSTATINE, Jr., respondent.
Supreme Court, Appellate Division, Second Department, New York.
June 26, 2013.
Rayaaz N. Khan, Jamaica, N.Y., for appellant.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.
[107 A.D.3d 994]In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Jolly, J.), dated April 16, 2012, which, after a hearing, denied the petition.
ORDERED that the order is reversed, on the facts, without costs or disbursements, the petition is granted, and the matter is remitted to the Family Court, Queens County, for the entry of an appropriate order of protection.
The petitioner commenced a family offense proceeding against her step-grandson, alleging that he committed the family offenses of, inter alia, assault in the third degree, harassment in the second degree, and disorderly conduct. After a hearing, the Family Court determined that the petitioner had failed to meet her burden of proof as to these offenses, and denied the petition.
A family offense must be established by a fair preponderance of the evidence ( seeFamily Ct. Act § 832; Matter of Scanziani v. Hairston, 100 A.D.3d 1007, 955 N.Y.S.2d 162;Matter of Pearlman v. Pearlman, 78 A.D.3d 711, 712, 911 N.Y.S.2d 87). “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 A.D.3d 32, 43–44, 910 N.Y.S.2d 149;see Matter of Winfield v. Gammons, 105 A.D.3d 753, 963 N.Y.S.2d 272;Matter of Clarke–Golding v. Golding, 101 A.D.3d 1117, 956 N.Y.S.2d 553).
Here, while the Family Court properly concluded that the petitioner failed to establish the family offenses of assault in the third degree ( seePenal Law §§ 10.00[9]; 120.00), and disorderly conduct ( seePenal Law § 240.20), the record does not support the Family Court's determination that the petitioner failed to [107 A.D.3d 995]prove the family offense of harassment in the second degree. In order to establish that the respondent committed that offense, the petitioner was required to show that “with the intent to harass, annoy or...
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