Winfield v. Gammons

• Decision Date: 03 April 2013
• Citation: 105 A.D.3d 753,2013 N.Y. Slip Op. 02259,963 N.Y.S.2d 272
• Parties: In the Matter of Assia WINFIELD, respondent, v. LePaul GAMMONS, appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 753

963 N.Y.S.2d 272

2013 N.Y. Slip Op. 02259

In the Matter of Assia WINFIELD, respondent,

v.LePaul GAMMONS, appellant.

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

April 3, 2013.

Mark Brandys, New York, N.Y., for appellant.

Rene Myatt, Hollis, N.Y., for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SYLVIA HINDS–RADIX, JJ.

In a family offense proceeding pursuant to Family Court Act article 8, LePaul Gammons appeals from an order of protection of the Family Court, Queens County (Lebwohl, J.), dated January 10, 2012, which, after a hearing, and upon a finding that he committed certain family offenses within the meaning of Family Court Act § 812, directed him, inter alia, to stay away from the petitioner until and including December 12, 2014.

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

The appellant contends that the Family Court erred in denying his request for an adjournment and that the Family Court thereby denied him of a fair trial. “[A]n application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion” ( Nieves v. Tomonska, 306 A.D.2d 332, 760 N.Y.S.2d 682). Contrary to the appellant's contention, the Family Court, which had previously granted an application of the appellant for an adjournment and, in fact, had given the parties approximately four additional months to prepare for a hearing, did not improvidently exercise its discretion in denying the request for an adjournment made by the appellant on the date set for the hearing ( see Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447;Atwater v. Mace, 39 A.D.3d 573, 835 N.Y.S.2d 600;Matter of Steven B., 24 A.D.3d 384, 385, 807 N.Y.S.2d 29).

The appellant further contends that the Family Court erred in crediting the testimony against him and in granting the order of protection. 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 Clarke–Golding v. Golding, 101 A.D.3d 1117, 956 N.Y.S.2d 553;see Matter of Kaur v. Singh, 73 A.D.3d 1178, 900 N.Y.S.2d 895;Matter of Luke v. Luke,...