Matter of Leviene v. Horrell

Matter of Leviene v Horrell 2026 NY Slip Op 05533 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Marjorie Leviene, respondent, v Kemeshia Horrell, appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-08925, (Docket No. O-11285-18) Colleen D. Duffy, J.P. Betsy Barros Lourdes M. Ventura Lisa S. Ottley, JJ. Austin I. Idehen, Jamaica, NY, for appellant. Carol Kahn, New York, NY, for respondent. [*1] DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, Kemeshia Horrell appeals from an order of fact-finding and disposition of the Family Court, Kings County (Denise M. Valme-Lundy, Ct. Atty. Ref.), dated June 2, 2025. The order of fact-finding and disposition, after a hearing, found that Kemeshia Horrell committed the family offense of disorderly conduct and directed the issuance of an order of protection in favor of Marjorie Leviene and against Kemeshia Horrell. ORDERED that the order of fact-finding and disposition is reversed, on the law, without costs or disbursements, the petition is denied, the proceeding is dismissed, and an order of protection of the same court dated June 2, 2025, is vacated. In April 2018, the petitioner commenced this proceeding pursuant to Family Court Act article 8 against the appellant seeking, inter alia, an order of protection in favor of the petitioner. In an order of fact-finding and disposition dated June 2, 2025, after a hearing, the Family Court found that the appellant committed the family offense of disorderly conduct and directed the issuance of an order of protection in favor of the petitioner and against the appellant. This appeal ensued. In a family offense proceeding, the petitioner has the burden of establishing the family offense by a fair preponderance of the evidence (see Family Ct Act § 832; Matter of Nunez v Spellen, 235 AD3d 874, 875; Matter of Cassie v Cassie, 109 AD3d 337, 340). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of the witnesses is entitled to great weight on appeal (see Matter of Nunez v Spellen, 235 AD3d at 875; Matter of Lederman v Lederman, 208 AD3d 483, 484). Contrary to the Family Court's determination, the evidence failed to establish that the appellant committed the family offense of disorderly conduct, as there was insufficient evidence to establish that the appellant's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm (see Penal Law § 240.20; Matter of Ramos v West, 234 AD3d 773, 774; Matter of Zaytseva v Frazier, 214 AD3d 895, 897). Accordingly, the order of fact-finding and disposition, which was predicated upon that finding, must be reversed, and the order of protection issued pursuant to the order of fact-finding and disposition must be vacated. The parties' remaining contentions are without merit. DUFFY, J.P., BARROS, VENTURA and OTTLEY, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court