—[*1] Levine & Gilbert, New York (Harvey A. Levine of counsel), for appellant.

Richard J. Feinberg, New City, for respondent.

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.