Holcomb v. Holcomb

Appellate Division of the Supreme Court of New York

Holcomb v. Holcomb

176 A.D.2d 409, 574 N.Y.S.2d 115, 1991 N.Y. App. Div. LEXIS 12391

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

DecidedSeptember 19, 1991

StatusPublished

Cited by6 cases

This text of 176 A.D.2d 409 (Holcomb v. Holcomb) 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

Holcomb v. Holcomb, 176 A.D.2d 409, 574 N.Y.S.2d 115, 1991 N.Y. App. Div. LEXIS 12391 (N.Y. Ct. App. 1991).

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Opinion

— Appeal from an order of the Family Court of Clinton County (Lewis, J.), entered May 3, 1990, which, inter alia, granted petitioner’s application, in a proceeding pursuant to Family Court Act article 8, for an order of protection.

Upon our review of the record, we find that petitioner has demonstrated by a fair preponderance of the evidence (Family Ct Act § 832) that respondent engaged in conduct which constituted harassment and, therefore, he committed a family offense within the meaning of Family Court Act § 812 (see, Matter of Rogers v Rogers, 161 AD2d 766). The unrefuted testimony of petitioner establishes that, on the dates specified, respondent threw things at petitioner, pushed her down the stairs and shoved her out the door. In addition, the circumstances surrounding respondent’s actions demonstrate that the element of intent was present. Finally, the fact that Penal Law § 240.25 (2) has been found to be unconstitutional is of no consequence in this case because Family Court did not specifically base its finding of harassment on that section.

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the order is affirmed, with costs.

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— Appeal from an order of the Family Court of Clinton County (Lewis, J.), entered May 3, 1990, which, inter alia, granted petitioner’s application, in a proceeding pursuant to Family Court Act article 8, for an order of protection.

Upon our review of the record, we find that petitioner has demonstrated by a fair preponderance of the evidence (Family Ct Act § 832) that respondent engaged in conduct which constituted harassment and, therefore, he committed a family offense within the meaning of Family Court Act § 812 (see, Matter of Rogers v Rogers, 161 AD2d 766). The unrefuted testimony of petitioner establishes that, on the dates specified, respondent threw things at petitioner, pushed her down the stairs and shoved her out the door. In addition, the circumstances surrounding respondent’s actions demonstrate that the element of intent was present. Finally, the fact that Penal Law § 240.25 (2) has been found to be unconstitutional is of no consequence in this case because Family Court did not specifically base its finding of harassment on that section.

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the order is affirmed, with costs.

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Bluebook (online)

176 A.D.2d 409, 574 N.Y.S.2d 115, 1991 N.Y. App. Div. LEXIS 12391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holcomb-v-holcomb-nyappdiv-1991.

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