CHEN v. CHEN (2026)

Order, Supreme Court, New York County (Linda M. Capitti, J.), entered on or about December 3, 2025, which, to the extent appealed from as limited by the briefs, found that plaintiff failed to prove by a preponderance of the evidence that defendant had committed the family offenses of harassment in the second degree and menacing in the second and third degrees against her and the children, and denied plaintiff's request for a final order of protection in her favor against defendant, unanimously affirmed, without costs.

There is no basis to disturb the court's credibility determinations in this consolidated divorce action and family offense proceeding, which were based not only on plaintiff's overt reliance on the petition to recall the substance of her allegations but also, among other things, on inconsistencies in plaintiff's testimony (see Matter of Everett C. v. Oneida P., 61 AD3d 489, 489 [1st Dept 2009] ).

Plaintiff failed to prove by a preponderance of the evidence that defendant committed the family offenses of harassment in the second degree (Penal Law §§ 240.26[1], [3] ) or menacing in the second and third degrees (Penal Law § 120.14[1], [2];  Penal Law § 120.15).  Plaintiff's partial recording of an argument between the parties did not corroborate her allegation that defendant threatened to throw her off a balcony.  The recording actually indicated that plaintiff was being physically aggressive with defendant as well and, in any event, did not demonstrate a genuine threat of harm to plaintiff (see Matter of Andrew C.B. v. Allegra B.J., 247 AD3d 637, 638–39 [1st Dept 2026] ).  Defendant's use of foul and disparaging language did not rise to the level of the alleged family offense of harassment in the second degree (see id. at 638;  Matter of Thelma U. v. Miko U., 145 AD3d 527, 528 [1st Dept 2016] ).  Nor does the record provide credible evidence that defendant's actions and words put plaintiff or the children in fear of imminent death or serious physical injury so as to constitute menacing in the second or third degree (see Matter of Alexandra U. v. Shalva S., 214 AD3d 468, 468–69 [1st Dept 2023] ).

We have considered plaintiff's remaining contentions and find them unavailing.