Hendrick v. DiRusso

264 A.D.2d 523, 694 N.Y.S.2d 471

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 30, 1999
• Status: Published

Opinion

In two family offense proceedings pursuant to Family Court Act article 8, Nicholas DiRusso appeals from (1) an order of the Family Court, Westchester County (Tolbert, J.), dated March 31, 1998, in Proceeding No. 1, which, after a hearing, ordered that he refrain from harassing Sharon Hendrick, and (2) an order of the same court, also dated March 31, 1998, in Proceeding No. 2, which, after a hearing, ordered that Sharon Hendrick refrain from menacing him, and Sharon Hendrick cross-appeals from both orders.

Ordered that the cross appeals are dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order in Proceeding No. 1 is modified by deleting therefrom the word “harassment” and substituting therefor the word “menacing”; as so modified, the order is affirmed, without costs or disbursements; and it is further,

Ordered that the order in Proceeding No. 2 is modified by deleting therefrom the word “menacing” and substituting therefor the word “harassment”; as so modified, the order is affirmed, without costs or disbursements.

Although the instant orders of protection have expired, in light of the enduring consequences which may potentially flow from an adjudication that a party has committed a family offense, the appeal is not academic (see, Matter of Combs v Solomon, 261 AD2d 473; Matter of Tibichrani v Debs, 230 AD2d 746).

However, we find no basis to disturb the Family Court’s determination in Proceeding No. 1 that Nicholas DiRusso menaced his wife, Sharon Hendrick. The Family Court properly conformed the petition to the proof (see, CPLR 3025 [c]). As the trier of fact, the Family Court’s determination regarding the credibility of witnesses is entitled to great weight (see, Matter of Tibichrani v Debs, supra). Its determination is not against the weight of the credible evidence.

Nevertheless, the record is clear that the Family Court transposed the offenses in the orders of protection, which we have modified accordingly. Ritter, J. P., Joy, H. Miller and Smith, JJ., concur.