Matter of Mack v. Richardson

Appeal by the petitioner from an order of the Family Court, Kings County (Sharon A. Bourne-Clarke, J.), dated March 29, 2016. The order, upon the granting of the respondent’s motion, made at the close of the petitioner’s case, to dismiss the petition for failure to make out a prima facie case, dismissed the petition.

Ordered that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, the motion is *741 denied, and the matter is remitted to the Family Court, Kings County, for a new fact-finding hearing and determination on the petition.

In 2015, the petitioner commenced this family offense proceeding against her former boyfriend, the respondent. The Family Court conducted a hearing on the petition and, at the conclusion of the petitioner’s case, granted the respondent’s motion to dismiss her petition for failure to establish a prima facie case. We reverse.

“A family offense must be established by a fair preponderance of the evidence” (Matter of Sealy v Sealy, 134 AD3d 725, 725 [2015]; see Family Ct Act § 832). “ Tn 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 irrevelant, and should not be considered’ ” (Matter of Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2010], quoting Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999]). Here, the Family Court failed to properly apply this standard. Viewing the petitioner’s evidence in a light most favorable to her, and accepting the evidence as true, it established a prima facie case (see Matter of Prezioso v Prezioso, 79 AD3d 1043, 1043-1044 [2010]; Matter of Awoleke v Awoleke, 79 AD3d 743, 743 [2010]; Matter of Ramroop v Ramsagar, 74 AD3d at 1209).

The respondent’s remaining contention is without merit.

Accordingly, the respondent’s motion to dismiss the petition for failure to establish a prima facie case should have been denied.