IN RE: Marie BOUTIN (2024)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Tamra Walker, J.), dated November 21, 2023.  The order granted the respondent's motion, made at the close of the petitioner's case at a fact-finding hearing, to dismiss the petition for failure to establish a prima facie case and dismissed the petition.

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

In March 2023, the petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, who is her husband.  At the close of the petitioner's case at a fact-finding hearing, the Family Court granted the respondent's motion to dismiss the petition for failure to establish a prima facie case and dismissed the petition.  The petitioner appeals.

“In a family offense proceeding, the petitioner has the burden of establishing that the charged conduct was committed as alleged in the petition by a fair preponderance of the evidence” (Matter of Stibrany v. Lamprea, 229 A.D.3d 557, 557, 215 N.Y.S.3d 418 [internal quotation marks omitted];  see Matter of Prince v. Ford, 195 A.D.3d 724, 724, 145 N.Y.S.3d 377).  “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.  The question of credibility is irrelevant, and should not be considered” (Matter of Stibrany v. Lamprea, 229 A.D.3d at 557–558, 215 N.Y.S.3d 418 [internal quotation marks omitted];  see Matter of Brown v. Brown, 127 A.D.3d 969, 969, 7 N.Y.S.3d 364).  However, the petitioner's case “may not be based upon allegations not charged in the petition” (Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63;  see Matter of Bessent v. Bessent, 113 A.D.3d 847, 848, 979 N.Y.S.2d 543;  Matter of Ungar v. Ungar, 80 A.D.3d 771, 772, 915 N.Y.S.2d 614).

Here, the petitioner failed to establish, prima facie, that the respondent committed acts constituting a family offense based on allegations actually charged in the petition (see Matter of Bessent v. Bessent, 113 A.D.3d at 848, 979 N.Y.S.2d 543;  Matter of Ungar v. Ungar, 80 A.D.3d at 772, 915 N.Y.S.2d 614).  Accordingly, the Family Court did not err in granting the respondent's motion to dismiss the petition for failure to establish a prima facie case and dismissing the petition.

In light of the foregoing we need not reach the petitioner's remaining contentions.

DILLON, J.P., WOOTEN, TAYLOR and MCCORMACK, JJ., concur.