Baginski v. Rostkowski

Appellate Division of the Supreme Court of New York

Baginski v. Rostkowski

96 A.D.3d 1051, 946 N.Y.S.2d 886

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 2012

StatusPublished

This text of 96 A.D.3d 1051 (Baginski v. Rostkowski) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baginski v. Rostkowski, 96 A.D.3d 1051, 946 N.Y.S.2d 886 (N.Y. Ct. App. 2012).

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Opinion

In a family offense proceeding pursuant to Family Court Act article 8, Mieczystaw Rostkowski appeals from an order of protection of the Family Court, Queens County (Fitzmaurice, J), dated September 26, 2011, which, upon a finding, made after a hearing, that he had committed a family offense, directed him, inter alia, to stay away from the petitioner until and including September 12, 2013.

Ordered that the order of protection is affirmed, without costs or disbursements.

Although the Family Court failed to specify the particular family offense under Family Court Act § 812 (1) that the appellant committed, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Drury v Drury, 90 AD3d 754, 754 [2011]). The evidence adduced at the hearing established, by a preponderance of the evidence, that the appellant engaged in acts which would constitute the offenses of menacing in the third degree, disorderly conduct, and harassment in the second [1052]*1052degree (see Family Ct Act § 812 [1]; § 832; Penal Law §§ 120.15, 240.20, 240.26 [1]; Matter of Melissa K. v Brian K., 72 AD3d 1129 [2010]; Matter of Sblendorio v D’Agostino, 60 AD3d 773 [2009]; Matter of Miriam M. v Warren M., 51 AD3d 581 [2008]; Matter of Sinclair v Batista-Mall, 50 AD3d 1044 [2008]). Rivera, J.P., Eng, Lott and Cohen, JJ., concur.

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In a family offense proceeding pursuant to Family Court Act article 8, Mieczystaw Rostkowski appeals from an order of protection of the Family Court, Queens County (Fitzmaurice, J), dated September 26, 2011, which, upon a finding, made after a hearing, that he had committed a family offense, directed him, inter alia, to stay away from the petitioner until and including September 12, 2013.

Ordered that the order of protection is affirmed, without costs or disbursements.

Although the Family Court failed to specify the particular family offense under Family Court Act § 812 (1) that the appellant committed, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Drury v Drury, 90 AD3d 754, 754 [2011]). The evidence adduced at the hearing established, by a preponderance of the evidence, that the appellant engaged in acts which would constitute the offenses of menacing in the third degree, disorderly conduct, and harassment in the second [1052]*1052degree (see Family Ct Act § 812 [1]; § 832; Penal Law §§ 120.15, 240.20, 240.26 [1]; Matter of Melissa K. v Brian K., 72 AD3d 1129 [2010]; Matter of Sblendorio v D’Agostino, 60 AD3d 773 [2009]; Matter of Miriam M. v Warren M., 51 AD3d 581 [2008]; Matter of Sinclair v Batista-Mall, 50 AD3d 1044 [2008]). Rivera, J.P., Eng, Lott and Cohen, JJ., concur.

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Bluebook (online)

96 A.D.3d 1051, 946 N.Y.S.2d 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baginski-v-rostkowski-nyappdiv-2012.

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