IN RE: Angelica M. ESCOBAR (2024)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Suffolk County (Catherine E. Miller, Ct. Atty. Ref.), dated April 7, 2023.  The order, insofar as appealed from, in effect, granted the respondent's motion, made at the close of the petitioner's case at a fact-finding hearing, to dismiss so much of the petition as alleged that the respondent committed the family offense of harassment in the second degree for failure to establish a prima facie case, vacated a temporary order of protection, and dismissed the petition.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The petitioner filed a petition alleging that the respondent, her half-sister, had committed various family offenses, including harassment in the second degree.  After the petitioner testified at a fact-finding hearing, the Family Court, inter alia, in effect, granted the respondent's motion to dismiss so much of the petition as alleged that the respondent committed the family offense of harassment in the second degree for failure to establish a prima facie case, vacated a temporary order of protection, and dismissed the petition.  The petitioner appeals.

“ ‘A family offense must be established by a fair preponderance of the evidence’ ” (Matter of Sabatino v. Alagona, 214 A.D.3d 664, 664, 182 N.Y.S.3d 917, 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 prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom” (Matter of Sabatino v. Alagona, 214 A.D.3d at 665, 182 N.Y.S.3d 917 [internal quotation marks omitted];  see Matter of Straight v. Schrouter, 168 A.D.3d 954, 955, 90 N.Y.S.3d 551).

Contrary to the petitioner's contention, accepting the evidence proffered in support of the petition as true, and giving it the benefit of every reasonable inference, the petitioner failed to establish, prima facie, that the respondent committed the family offense of harassment in the second degree (see Matter of Sabatino v. Alagona, 214 A.D.3d at 665, 182 N.Y.S.3d 917;  Matter of Straight v. Schrouter, 168 A.D.3d at 955, 90 N.Y.S.3d 551).

BARROS, J.P., MILLER, WARHIT and TAYLOR, JJ., concur.