IN RE: Nailah FERNANDES (2026)

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Elenor Reid–Cherry, J.), dated October 22, 2024.  The order, upon the granting of the respondent's motion, joined by the attorney for the child, 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, dismissed the petition.

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

The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, with whom she has a child in common.  At the close of the petitioner's case at a fact-finding hearing, the respondent, joined by the attorney for the child, moved to dismiss the petition for failure to establish a prima facie case.  In an order dated October 22, 2024, the Family Court dismissed the petition.  The petitioner appeals.

“A family offense must be established by a fair preponderance of the evidence” (Matter of Angelica M.E. v Delmy S.A.-H., 228 AD3d 862, 862 [internal quotation marks omitted] ).  “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” (id. at 862 [internal quotation marks omitted];  see Matter of Sevastianov v Sevastyanova, 245 AD3d 817, 817).

Here, 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 offenses of harassment in the second degree (see Family Ct Act § 812[1];  Penal Law § 240.26[2];  Matter of Angelica M.E. v Delmy S.A.-H., 228 AD3d at 863;  Matter of Mamantov v Mamantov, 86 AD3d 540, 541) or stalking in the fourth degree (see Family Ct Act § 812[1];  Penal Law § 120.45[1];  Matter of Ayar v Akcay, 184 AD3d 636, 636;  Matter of Ovsanik v Ovsanik, 89 AD3d 1451).

BARROS, J.P., WOOTEN, DOWLING and LANDICINO, JJ., concur.