In this proceeding brought under Article 8 of the Family Court Act, respondent G.P. (“respondent”), through counsel, moves to dismiss petitioner A.C.’s (“petitioner”) petition following the close of petitioner’s case-in-chief at fact-finding. Respondent argues that petitioner has failed to show, by a fair preponderance of the evidence, that respondent committed any qualifying family offenses. Petitioner, through her counsel, opposes the motion by arguing that her petition must be viewed in a light most favorable. After considering the parties arguments on the record, and after a thorough review of the evidence at the fact-finding, including recordings of the proceedings and documents received in evidence that are incorporated by reference, respondent’s motion is granted. Background Petitioner is the spouse of respondent and has children in common with respondent. On June 25, 2021, petitioner filed a family offense petition in the Family Court in New York County. After issue was joined and following several court conferences at which resolution could not be achieved, a fact-finding hearing was held on March 31, 2022, May 31, 2022, June 17, 2022, September 9, 2022, and October 20, 2022. Petitioner’s most prominent allegations within her petition, as testified to throughout the course of the fact-finding, relate to respondent purportedly trespassing on petitioner’s property, stalking petitioner, and subjecting petitioner to physical attacks. To be sure, petitioner testified to discrete interactions with respondent in July 2019, February 2020, and May 2021 that embody the gravamen of her petition. Petitioner testified that the first incident between her and respondent occurred at their marital residence in California in July 2019. Petitioner testified that in or about July 2019, petitioner and respondent were discussing their family when respondent grabbed petitioner by the neck, pushed petitioner into a wall, and then attempted to punch petitioner in the face. Petitioner further testified that thereafter, respondent went into a room, and slammed the door with such force that there was a notable crack in the door. Petitioner also testified that respondent shouted obscenities at petitioner during the exchange. Petitioner testified that she was fearful of respondent following this purported incident. With respect to the second incident, petitioner testified that in or about February 2020, respondent unexpectedly showed up at petitioner’s current residence at 15 West 72nd Street in New York City and represented that he was a resident within the building. Petitioner further testified that at some point petitioner and respondent had a discussion in the lobby of the building. Petitioner then testified that during their conversation, respondent got upset and tried force petitioner to exit the building with respondent. Petitioner states that respondent grabbed her arm with such force that petitioner had deep lacerations on her arm. Following this exchange, petitioner stated that she felt acute fear for her safety and well-being. With respect to the third and final incident, petitioner testified that on or about May 31, 2021, petitioner was in front of her apartment building with her daughters at approximately 1:00 AM when respondent pushed himself into petitioner with such force that petitioner stumbled into one of petitioner and respondent’s daughters. Thereafter, petitioner testified that she suffered bruising on her shoulder and hip and marks atop her hands. Petitioner further testified that she reported this incident to the police. On cross-examination, respondent’s counsel credibly called into question petitioner’s statements regarding the first incident. To be sure, respondent’s counsel adeptly challenged respondent’s recollection of the incident, and highlighted that petitioner’s testimony was not substantiated by any photographs of the purportedly cracked door. Moreover, despite petitioner’s testimony that she lived in fear of respondent, respondent’s counsel was able to place into evidence numerous exchanges between petitioner and respondent following the incident that revealed a cordial and convivial relationship. Next, with respect the second incident, respondent’s counsel introduced additional correspondence between petitioner and respondent that defied petitioner’s assertions that she was fearful of respondent. For instance, the court received in evidence, Ex. P — a conversation between petitioner and respondent wherein petitioner and respondent cordially discussed pick-up of their daughter from school. Likewise, the court received in evidence Ex. K, a conversation wherein petitioner offered to pick up respondent from the airport when he traveled to New York in December 2019. On her direct examination, petitioner said did not see respondent between December 2019 and February 2020. However, on cross-examination, petitioner conceded that she had in fact seen respondent, as the documents received in evidence by the court corroborated. On cross-examination, respondent’s counsel also challenged petitioner’s assertion that she was injured during an exchange with respondent in February 2020. To be sure, respondent’s counsel highlighted that scratches that petitioner purportedly received during an altercation with respondent were well-healed. Petitioner also conceded that said pictures were taken several days after the alleged incident, even though on direct examination petitioner had testified the pictures had been taken shortly after the incident. Petitioner also appeared to concede that some of the marks could have been caused by her since she admitted to scratching herself from time to time. With respect to the third and final incident, respondent’s counsel confronted petitioner with respect to her claim that respondent had assaulted petitioner on May 31, 2021, by pushing himself into petitioner. Petitioner had testified that while she was walking with her two daughters next to her, she was pushed by respondent and fell. However, on cross-examination, respondent’s counsel challenged petitioner by highlighting that her testimony that respondent threw his body backwards while squatting was anatomically improbable, if not impossible. Moreover, respondent’s counsel questioned the location of petitioner’s bruising on the front of her hand even through she claimed to have fallen forward. Though petitioner denied it, respondent’s counsel appeared to suggest that petitioner’s injuries had been caused by a bicycle accident rather than a fall precipitated by respondent’s actions. Even so, respondent’s counsel suggested that petitioner had failed to prove that respondent intended to cause any harm to petitioner, and highlighted that respondent was never prosecuted for this alleged incident. Following petitioner’s testimony, a porter and doorman in petitioner’s building, James Karkoza, testified that he had seen respondent in petitioner’s building in November 2020, and then “five or six months later.” Although Karkoza described respondent as “suspicious,” he conceded he did not believe that respondent was stalking petitioner, but rather “waiting” for petitioner. After petitioner rested, respondent made the instant application to dismiss premised on petitioner’s failure to meet her burden of showing, by a preponderance of the evidence, that respondent committed any qualifying family offenses against petitioner. Respondent highlighted that respondent did not stalk petitioner, did not harass petitioner insofar as the parties mutually communicated with one another, and did not assault petitioner insofar as respondent never intended to cause petitioner any harm. Petitioner opposed the motion. Discussion At a fact-finding hearing pursuant to Family Court Act article 8, the petitioner bears the burden of establishing the allegations in the petition by a “fair preponderance of the evidence” (Family Court Act §832), and the Family Court’s credibility determinations at a fact-finding hearing are entitled to great weight unless clearly unsupported by the record (see Matter of Creighton v. Whitmore, 71 AD3d 1141 [2d Dept. 2010]; Matter of Nusbaum v. Nusbaum, 59 AD3d 725 [2d Dept. 2009]; see also Matter of Crenshaw v. Thorpe-Crenshaw, 146 AD3d 951, 952 [2d Dept. 2017]; Matter of Zhuo Hong Zheng v. Hsin Cheng, 144 AD3d 1166, 1167 [2d Dept. 2016]; Matter of Kiani v. Kiani, 134 AD3d 1036, 1037 [2d Dept. 2015]; Matter of Tulshi v. Tulshi, 118 AD3d 716 [2d Dept. 2014]; Matter of Konstatine v. Konstatine, 107 AD3d 994[2d Dept. 2013]). Where a petitioner fails to set forth that the respondent has committed a qualifying family offense, the petition may be dismissed (Lashlee v. Lashlee, 161 AD3d 865, 866 [2d Dept 2018]). “Great deference is given to the Family Court’s credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear their testimony and observe their demeanor” (Matter of Ava A. [Steven A.], 179 AD3d 666, 669 [2d Dept. 2020]; see Matter of Magana v. Delph, 163 AD3d 673 [2d Dept. 2018]). Indeed, it has been said that the hearing court “has the best vantage point for evaluating the credibility of the witness[.]” (In re Everett C. v. Oneida P., 61 AD3d 489[1st Dept 2009]). Finally, under Family Court Act §812 (1), a petition cannot be dismissed “solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition,” but it can be dismissed if the events are not contemporaneous and there is a finding that the petition fails to “sufficiently plead conduct constituting a pattern of imminent and ongoing danger” (Latava P. v. Charles W., 171 AD3d 525 [1st Dept 2019]). Here, petitioner has failed to meet her burden of establishing that respondent committed any of the qualifying family offenses listed in her petition. With respect to Disorderly Conduct, as defined in PL §240.20, petitioner failed to establish that respondent engaged in any public nuisance or created a hazardous or physically offensive condition by any of his actions. With respect to Harassment in the First and Second Degree, as defined in PL §240.25 and §240.26, petitioner failed to establish that respondent either “intentionally and repeatedly” followed petitioner in a public place for the purpose of instilling fear in petitioner or intentionally subjected petitioner to unwanted physical contact. Indeed, Ex. J through R received in evidence highlight cordial conversations that petitioner and respondent were having with one another that completely debunk her testimony that she was “shocked” when she saw respondent in New York City in December 2019. Likewise, Karkoza’s testimony underscores the fact that respondent’s presence in the vicinity of petitioner’s building was innocuous rather than imposing. In fact, petitioner invited respondent to her residence. Moreover, petitioner’s testimony regarding respondent subjecting petitioner to physical contact at unspecified times was largely contradicted and incredible as a matter of law. As for Aggravated Harassment in the Second Degree, as defined in PL §240.30, petitioner has failed to establish that respondent communicated with petitioner in a manner that placed petitioner in fear insofar as all the communications received in evidence demonstrated mutual and friendly exchanges between petitioner and respondent such that petitioner’s claims of “fear” are unequivocally dispelled. With respect to Assault in the Third Degree, as defined in PL §120.00, petitioner failed to show that respondent inflicted physical injury — a bodily impairment or substantial pain — on petitioner. While the physical imposition contemplated under the statute can be either intentional or reckless, petitioner failed to credibly prove that respondent either intentionally or recklessly subjected petitioner to a bodily impairment or substantial pain. Indeed, petitioner’s testimony with respect to a purported physical altercation with respondent in or about July 2019 was equivocal and characterized more by what petitioner could not recall rather than what she could. To be sure, petitioner’s inability to accurately recall when the incident occurred called into question whether it happened. Likewise, petitioner’s inability to corroborate her testimony with any physical evidence or photographs raised additional alarm in the court’s assessment. For those reasons, the court additionally finds that petitioner has failed to prove that respondent committed the offense of Criminal Obstruction of Breathing, as defined in PL §121.11, since the basis for that offense is premised on the same unreliable testimony petitioner gave concerning an altercation with respondent in or about July 2019. Petitioner’s testimony regarding an alleged altercation in May 2021 is equally unavailing. As highlighted by respondent, petitioner’s testimony that respondent threw his body backwards while squatting does not pass muster. More to the point, petitioner’s testimony that she fell forward, but managed to sustain bruising in a location where bruising would not have occurred while falling forward raises deep doubts about the veracity of petitioner’s testimony. Petitioner’s purported injuries from the May 2021 incident do not appear to have been caused by respondent. Indeed, the court takes not of petitioner’s concession that respondent was never prosecuted for the alleged assault even though it was captured on video and reported to law enforcement. As for Menacing in the Third Degree, as defined in PL §120.15, the court did not receive any credible testimony from petitioner that respondent “by physical menace intentionally place[d]” petitioner in fear of death or imminent serious physical injury. Finally, with respect to Stalking, the court finds that petitioner has failed to prove that respondent committed that offense insofar as petitioner’s own witness, Karkoza, described respondent’s behavior as “ suspicious” rather than as “stalking behavior.” Moreover, the mutual affable conversations between petitioner and respondent throughout the duration of the purported offenses diminishes petitioner’s claim that respondent allegedly “stalked” her. In sum, petitioner failed to make out the required showing that respondent committed any family offenses against petitioner. In view of this court, petitioner’s testimony taken as a whole, both in her inflection and demeanor, appeared to be motivated by a general animus towards respondent rather than by genuine fear of harm because of respondent’s conduct. Indeed, throughout her testimony, petitioner exhibited a generally hostile demeanor and made repeated phantastic descriptions of the events in question. Even when she appeared to be referencing specific contact with respondent, petitioner repeatedly contradicted herself. What’s more, petitioner conceded that she continued to speak to respondent regularly and jovially even though she allegedly lived in “fear” of respondent. While this court does not mean to make light of the notion that a potential victim could be fearful of an alleged perpetrator even while continuing to have conversation with that perpetrator, this case does not fit within that mold. To be sure, at times petitioner categorically denied talking to respondent on direct examination before conceding on cross-examination that she did talk to respondent. And when petitioner was confronted with inconsistencies within her testimony, petitioner conveniently could not remember incidents or recall her own prior testimony on direct examination. For instance, petitioner initially said that she did not talk to respondent in December 2019 before being confronted by correspondence received in evidence that spoke to the contrary. When pressed about such inconsistencies, petitioner stated that she “could not remember” speaking to respondent. Taken as a whole, much of petitioner’s testimony was incredible as a matter of law and failed to credibly prove respondent’s commission of a single qualifying family offense. Even if petitioner’s testimony had been credible, the last of the altercations she testified to was in May, 2021, and there is no “pattern of imminent and ongoing danger” (Latava P., 171 AD3d 525, supra). In opposition to the instant motion, petitioner erroneously stated that this court must afford petitioner the benefit of every favorable inference. While that is true where a motion to dismiss is made pursuant to CPLR §3211 (a)(7) for failure to state a cause of action, here the court held a hearing at which petitioner bore the burden of establishing by a preponderance of the evidence that at least one qualifying family offense was committed against her and failed to proffer credible testimony to meet that burden. Therefore, the deficits mentioned herein do not speak to pleading deficiencies and defects, but rather to petitioner’s failure to meet her necessary burden at fact-finding. Considering the foregoing, it is hereby ORDERED that the petition is dismissed, with prejudice, as petitioner failed to satisfy her burden of showing that respondent committed a qualifying family offense against her. The Temporary Order of Protection is vacated, and the matter is marked off calendar. The future scheduled court appearance on January 11, 2023, from 2:00 PM to 4:30 PM is vacated by virtue of this court’s dismissal order. This constitutes the order and decision of the court. Dated: November 18, 2022
