Marisela N. v. Lacy M.S.

Appellate Division of the Supreme Court of New York

Marisela N. v. Lacy M.S.

101 A.D.3d 425, 955 N.Y.2d 322

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

DecidedDecember 4, 2012

StatusPublished

This text of 101 A.D.3d 425 (Marisela N. v. Lacy M.S.) 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.

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Marisela N. v. Lacy M.S., 101 A.D.3d 425, 955 N.Y.2d 322 (N.Y. Ct. App. 2012).

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Opinion

A fair preponderance of the evidence (see Family Ct Act § 832), including petitioner’s testimony, supports the court’s finding that respondent had committed acts that constitute the family offense of harassment in the second degree (see Family Ct Act § 812 [1]; Fenal Law § 240.26 [3]), warranting the issuance of an order of protection (see Family Ct Act § 841). There is no basis to disturb the court’s credibility determinations (see Matter of F.B. v W.B., 248 AD2d 119 [1st Dept 1998]).

The order of protection is valid despite the lack of a dispositional hearing. “There is no explicit statutory mandate that a dispositional hearing be conducted in proceedings under Family Court Act article 8” (Matter of Hazel P.R. v Paul J.P., 34 AD3d 307, 308 [1st Dept 2006]). In addition, respondent never demanded, or objected to the lack of, such a hearing (see Matter of Tonya B. v Matthew B., 90 AD3d 463, 463 [1st Dept 2011]). Moreover, since there is no other legal remedy available for the harassment proved against respondent and she “does not suggest any remedy other than issuance of an order of protection, a separate dispositional hearing would have served no purpose” (Matter of Annie C. v Marcellus W, 278 AD2d 177, 177-178 [1st Dept 2000]). Concur — Saxe, J.P., Friedman, Acosta, Renwick, Freedman, JJ.

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A fair preponderance of the evidence (see Family Ct Act § 832), including petitioner’s testimony, supports the court’s finding that respondent had committed acts that constitute the family offense of harassment in the second degree (see Family Ct Act § 812 [1]; Fenal Law § 240.26 [3]), warranting the issuance of an order of protection (see Family Ct Act § 841). There is no basis to disturb the court’s credibility determinations (see Matter of F.B. v W.B., 248 AD2d 119 [1st Dept 1998]).

The order of protection is valid despite the lack of a dispositional hearing. “There is no explicit statutory mandate that a dispositional hearing be conducted in proceedings under Family Court Act article 8” (Matter of Hazel P.R. v Paul J.P., 34 AD3d 307, 308 [1st Dept 2006]). In addition, respondent never demanded, or objected to the lack of, such a hearing (see Matter of Tonya B. v Matthew B., 90 AD3d 463, 463 [1st Dept 2011]). Moreover, since there is no other legal remedy available for the harassment proved against respondent and she “does not suggest any remedy other than issuance of an order of protection, a separate dispositional hearing would have served no purpose” (Matter of Annie C. v Marcellus W, 278 AD2d 177, 177-178 [1st Dept 2000]). Concur — Saxe, J.P., Friedman, Acosta, Renwick, Freedman, JJ.

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Bluebook (online)

101 A.D.3d 425, 955 N.Y.2d 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marisela-n-v-lacy-ms-nyappdiv-2012.

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