IN RE: Marash GJELAJ

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

IN RE: Marash GJELAJ, Respondent, v. Anisa GJELAJ, Appellant.

2016-12949

Decided: January 23, 2019

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ. Karen M. Jansen, White Plains, NY, for appellant. Neal S. Comer, White Plains, NY, for respondent. Stephen P. Gold, White Plains, NY, attorney for the child.

DECISION & ORDER

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

The father commenced this family offense proceeding against the mother, alleging that she had committed, inter alia, the family offense of assault in the second degree against the subject child during a visit with the child.  After fact-finding and dispositional hearings, the Family Court found that the mother had committed that family offense and issued an order of protection directing her, among other things, to stay away from the subject child until and including June 30, 2018.  The mother appeals from the order of protection.

Although the order of protection expired by its own terms on June 30, 2018, the appeal has not been rendered academic in light of the enduring consequences which may flow from a finding that the mother committed a family offense (see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 673, 3 N.Y.S.3d 288, 26 N.E.3d 1143).

Contrary to the mother's contention, the Family Court did not err in denying her motion to dismiss the petition for lack of specificity.  Affording the petition a liberal construction, accepting the allegations contained therein as true, and granting the petitioner the benefit of every favorable inference, the petition adequately alleged that the mother committed a family offense against the child (see Family Ct Act § 821[1][a] ).  Accordingly, we agree with the court's denial of the mother's motion to dismiss the petition (see Matter of Jones v. Jones, 149 A.D.3d 1079, 1080, 53 N.Y.S.3d 192;  Matter of Testman v. Roman, 78 A.D.3d 719, 720, 909 N.Y.S.2d 913).

The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal, such that they will not be disturbed unless clearly unsupported by the record (see Matter of Porter v. Moore, 149 A.D.3d 1082, 1083, 53 N.Y.S.3d 174;  Matter of Henderson v. Henderson, 137 A.D.3d 911, 912, 27 N.Y.S.3d 183;  Matter of Alleyne v. Ally, 130 A.D.3d 718, 11 N.Y.S.3d 879;  Matter of Tumba v. Gharib, 127 A.D.3d 770, 771, 4 N.Y.S.3d 545;  Matter of Campbell v. Campbell, 123 A.D.3d 1123, 1124, 1 N.Y.S.3d 219;  Matter of Maiorino v. Maiorino, 107 A.D.3d 717, 965 N.Y.S.2d 885).  Here, a fair preponderance of the credible evidence adduced at the fact-finding hearing supported a finding that the mother committed the family offense of assault in the second degree (see Family Ct Act §§ 812[1];  832;  Penal Law § 120.05).

The mother's remaining contentions are without merit.

DILLON, J.P., CHAMBERS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.

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