Peter G. v. Karleen K. , 856 N.Y.S.2d 859 ( 2008 )

Order, Family Court, New York County (Karen I. Lupuloff, J.), entered December 5, 2007, which, after a fact-finding hearing, in this proceeding brought pursuant to article 8 of the Family Court Act, dismissed the petition seeking an order of protection, unanimously affirmed, without costs.

The court properly dismissed the petition where the evidence failed to establish by a fair preponderance thereof that respondent committed acts that would constitute assault in the third degree during an incident where the parties’ five-year-old son would not willingly attend a weekend visit with petitioner (see Family Ct Act § 812 [1]; § 832; Penal Law § 120.00). There exists no basis upon which to disturb the court’s credibility determinations (see Matter of Smith v Smith, 308 AD2d 592 [2003]).

We decline to review petitioner’s request that the Family Court Judge be recused and that his custody petition be assigned to a different judge, since this issue is raised for the first time on appeal. Concur—Lippman, P.J., Andrias, Nardelli, Acosta and DeGrasse, JJ.