Matter of David ZZ. v. Michael ZZ., 151 A.D.3d 1339 (N.Y. App. Div. 3d Dep't 2017). · Go Syfert
Matter of David ZZ. v. Michael ZZ., 151 A.D.3d 1339 (N.Y. App. Div. 3d Dep't 2017). Cases Citing This Book View Copy Cite
12 citation events (12 in the last 25 years) across 1 distinct court.
Cited for
At page 1340 to attend the calling hours held for his deceased grandson in October 2013. Following a fact-finding hearing, Family Court dismissed the petition, with…5 citing casesopening of page *1340 (no citing court says what it cites this page for)
  • Matter of Wilson v. Wilson, 2019 NY Slip Op 1462 (N.Y. App. Div. 3d Dep't 2019).
    It was incumbent upon petitioner, as the party seeking an order of protection, to show by a preponderance of the evidence that respondent committed one or more family offenses ( see Family Ct Act § 832; Matter of Kevin F. v Betty E. , 154…
  • Matter of Jasmin NN. v. Jasmin C., 2018 NY Slip Op 8725 (N.Y. App. Div. 3d Dep't 2018).
    We agree with Family Court that Jasmin NN. satisfied her burden of proving, by a preponderance of the evidence, that Jasmin C. committed one of the family offenses specified in Family Ct Act § 821 (1) (a) ( see Family Ct Act § 832; Matter…
  • Matter of Citizens Concerned for Child., Inc. v. Rahsaan CC., 2018 NY Slip Op 8726 (N.Y. App. Div. 3d Dep't 2018).
    As the party seeking an order of protection in a family offense proceeding, it was petitioner's burden to establish, by a fair preponderance of the evidence, that respondent committed the alleged family offenses ( see Family Ct Act §§ 821…
  • Matter of Susan WW. v. Alan WW., 2018 NY Slip Op 3190 (N.Y. App. Div. 3d Dep't 2018).
    As the party seeking an order of protection, petitioner "bore the burden of establishing by a preponderance of the evidence that [respondent] committed the alleged family offense" ( Matter of Kevin F. v Betty E. , 154 AD3d 1118, 1122 [2017…
  • Matter of Kevin F. v. Betty E., 154 A.D.3d 1118 (N.Y. App. Div. 3d Dep't 2017). 2 cites
    Harassment in the first degree requires that an individual “intentionally and repeatedly harass [ ] another person ... by engaging in a course of conduct or by repeatedly committing acts which placet ] such person in reasonable fear of phy…
At page 1341 observe “tenderness” to the lower left quadrant of petitioner’s abdomen. In contrast, respondent testified that he had no physical contact with petitioner at…4 citing casesopening of page *1341 (no citing court says what it cites this page for)
  • Matter of Boltz v. Geraci, 2024 NY Slip Op 04500 (N.Y. App. Div. 3d Dep't 2024).
    According deference to Family Court's assessments of credibility, we find ample support in the record for that determination ( see Matter of David ZZ. v Michael ZZ. , 151 AD3d 1339, 1341 [3d Dept 2017]; see also Matter of Latava P. v Charl…
  • Matter of Stefanow v. Stefanow, 2023 NY Slip Op 01553 (N.Y. App. Div. 3d Dep't 2023).
    Moreover, when according deference to Family Court's credibility determinations, we cannot conclude that the court erred in finding that the evidence at the hearing failed to prove that respondent committed the family offense of harassment…
  • Matter of KC B. Mench v. Majerus, 188 A.D.3d 1651 (N.Y. App. Div. 4th Dep't 2020).
    The record does not support the conclusion that the father intended to "harass, annoy or alarm [the mother]" (§ 240.26) and, thus, the mother did not meet her burden of establishing a family offense by a preponderance of the evidence ( see…
  • Donna E. v. Michael F., 185 A.D.3d 1179 (N.Y. App. Div. 3d Dep't 2020).
    Based on our review of the testimony and evidence, and deferring to Supreme Court's credibility determinations, we decline to disturb Supreme Court's determination that the wife failed to prove, by a preponderance of the evidence, that the…
Retrieving the full opinion text from the archive…
In the Matter of David ZZ., Appellant,
v.
Michael ZZ., Respondent
523455.
Appellate Division of the Supreme Court of the State of New York.
Jun 15, 2017.
151 A.D.3d 1339
Clark, McCarthy, Egan, Rose, Devine.
Cited by 10 opinions  |  Published
Clark, J.

Appeal from an order of the Family Court of Ulster County (Savona, J.), entered June 3, 2016, which dismissed petitioner’s application, in a proceeding pursuant to Family Ct Act article 8, for an order of protection.

In April 2015, petitioner commenced this family offense proceeding against respondent — his son — for allegedly committing the offenses of harassment in the first degree and harassment in the second degree by striking him when he attempted[*1340] to attend the calling hours held for his deceased grandson in October 2013. Following a fact-finding hearing, Family Court dismissed the petition, with prejudice, on the basis that petitioner failed to establish by a preponderance of the evidence that respondent had committed a family offense. Petitioner now appeals.

To sustain a finding that a family offense has been committed, the petitioner bears the burden of establishing, by a preponderance of the evidence, that the respondent committed one of the enumerated family offenses set forth in Family Ct Act § 821 (1) (a) (see Family Ct Act § 832; Matter of Dawn DD. v James EE., 140 AD3d 1225, 1226 [2016], lv denied 28 NY3d 903 [2016]; Matter of Elizabeth X. v Irving Y., 132 AD3d 1100, 1101 [2015]). “Ultimately, whether a family offense has been committed is a factual issue to be resolved by Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight” (Matter of Shana SS. v Jeremy TT., 111 AD3d 1090, 1091 [2013] [internal quotation marks, brackets, ellipsis and citations omitted], lv denied 22 NY3d 862 [2014]; see Matter of James XX. v Tracey YY., 146 AD3d 1036, 1039 [2017]). As relevant here, harassment in the first degree requires that an individual “intentionally and repeatedly harass [ ] another person ... by engaging in a course of conduct or by repeatedly committing acts which placet ] such person in reasonable fear of physical injury” (Penal Law § 240.25). Harassment in the second degree requires that, “with intent to harass, annoy or alarm another person . . . [an individual] strikes, shoves, kicks or otherwise subjects [an]other person to physical contact, or attempts or threatens to do the same” (Penal Law § 240.26 [1]).

At the hearing, the parties offered competing accounts as to what occurred at the funeral home in October 2013. Petitioner testified that, shortly after he arrived at the funeral home, respondent and another one of his sons repeatedly struck him in the face, kicked him in the stomach and dragged him down a ramp, causing two of his teeth to crack and him to experience several days of rectal bleeding, for which he sought dental and medical treatment. Petitioner stated that, since the alleged incident, he had not had any contact with respondent. Petitioner’s physician, a specialist in internal medicine, testified that petitioner reported to him, six days after the alleged incident, during a follow-up appointment to address petitioner’s diverticulitis, that he had been punched in the stomach by one of his sons. The physician stated that his examination of petitioner’s abdomen was “unremarkable,” but that he did[*1341] observe “tenderness” to the lower left quadrant of petitioner’s abdomen.

In contrast, respondent testified that he had no physical contact with petitioner at the funeral home and that he had not seen petitioner since that day. Respondent stated that he and his brother informed petitioner that he was unwelcome at the funeral home and that his brother thereafter took petitioner by the arm and attempted to escort him out of the building. Respondent asserted that, as his brother was escorting petitioner out of the funeral home, petitioner latched onto a handrail, at which point his brother immediately let go of petitioner. Respondent testified that he then called the police and that, shortly thereafter, upon the request of separate police officers who had arrived at the funeral home to pay their respects, petitioner left voluntarily. Respondent’s brother largely confirmed respondent’s account of events, stating that he had only attempted to escort petitioner out of the funeral home and that no one had struck, punched, kicked or knocked petitioner to the ground.

Insofar as the parties each testified that they had no further contact after the alleged incident in October 2013, and petitioner alleges no additional acts that could form the basis for a finding that respondent committed the family offense of harassment in the first degree, the record cannot support a finding that respondent repeatedly harassed petitioner by engaging in a course of conduct or repeatedly committed acts which placed petitioner in reasonable fear of physical injury (see Penal Law § 240.25). As for petitioner’s allegation that respondent committed the family offense of harassment in the second degree, Family Court expressly found the testimony of respondent and his brother to be more credible than the testimony offered by petitioner. According due deference to Family Court’s express credibility assessments, we find ample support in the record for Family Court’s determination that petitioner failed to prove, by a preponderance of the evidence, that respondent committed the family offense of harassment in the second degree (see Matter of Wendy Q. v Jason Q., 94 AD3d 1371, 1373 [2012]; Matter of Eck v Eck, 44 AD3d 1168, 1169 [2007], lv denied 9 NY3d 818 [2008]). As such, we affirm Family Court’s order dismissing the family offense petition with prejudice.

McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.

Ordered that the order is affirmed, without costs.