Luke v. Luke
| Decision Date | 06 April 2010 |
| Parties | In the Matter of Carol LUKE, appellant, v. Gustavo LUKE, respondent. |
| Court | New York Supreme Court — Appellate Division |
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.
Gustavo Luke, New York, N.Y., respondent pro se.
In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Sheares, J.), dated July 8, 2009, which, after a hearing, dismissed the petition.
ORDERED that the order is affirmed, without costs or disbursements.
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 ( see Matter of Holder v. Francis, 67 A.D.3d 679, 888 N.Y.S.2d 567; Matter of Sblendorio v. D'Agostino, 60 A.D.3d 773, 877 N.Y.S.2d 92; Matter of Fernandez v. Pacheco, 59 A.D.3d 542, 543, 872 N.Y.S.2d 291; Matter of Gray v. Gray, 55 A.D.3d 909, 867 N.Y.S.2d 110; Matter of Barnes v. Barnes, 54 A.D.3d 755, 863 N.Y.S.2d 758; Matter of Wilkins v. Wilkins, 47 A.D.3d 823, 824, 850 N.Y.S.2d 538). Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent assaulted or attempted to assault the petitioner during the course of the subject incident. The Family Court's determination that the petitioner had failed to establishthat a family offense was committed was based solely upon its assessment of the credibility of the parties and of an eyewitness, and is supported by the record ( see Matter of Barnes v. Barnes, 54 A.D.3d at 756, 863 N.Y.S.2d 758; Matter of Wilkins v. Wilkins, 47 A.D.3d at 824, 850 N.Y.S.2d 538; Matter of Hall v. Hall, 45 A.D.3d 842, 843, 845 N.Y.S.2d 745). Accordingly, we decline to disturb the Family Court's determination.
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