Matter of Aly T. v. Francisco B.

Appellate Division of the Supreme Court of New York

Matter of Aly T. v. Francisco B.

139 A.D.3d 597, 32 N.Y.S.3d 152

Appellate Division of the Supreme Court of the State of New York·Decided May 26, 2016·No. 1253·Published

Opinion

Order, Family Court, Bronx County (Lauren N. Lerner, Ref.), entered on or about July 28, 2015, which, after a fact-finding hearing, dismissed the petition for an order of protection against respondent, unanimously affirmed, without costs.

Petitioner failed to establish by a preponderance of the evidence that respondent, the father of two of her children, committed any of the family offenses alleged in the petition, including harassment in the second degree, so as to justify the issuance of an order of protection (see Matter of Mildred R. v Elizabeth R., 131 AD3d 892 [1st Dept 2015], lv denied 26 NY3d 913 [2015]). Although petitioner’s testimony and evidence as to the photograph posted on respondent’s Facebook page meets the definition in common parlance of harassment, it does not sufficiently demonstrate that respondent committed acts that would constitute harassment in the second degree (see Penal Law § 240.26 [3]; see also Family Ct Act § 812 [1]).

We have considered petitioner’s remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels and Kahn, JJ.

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Order, Family Court, Bronx County (Lauren N. Lerner, Ref.), entered on or about July 28, 2015, which, after a fact-finding hearing, dismissed the petition for an order of protection against respondent, unanimously affirmed, without costs.

Petitioner failed to establish by a preponderance of the evidence that respondent, the father of two of her children, committed any of the family offenses alleged in the petition, including harassment in the second degree, so as to justify the issuance of an order of protection (see Matter of Mildred R. v Elizabeth R., 131 AD3d 892 [1st Dept 2015], lv denied 26 NY3d 913 [2015]). Although petitioner’s testimony and evidence as to the photograph posted on respondent’s Facebook page meets the definition in common parlance of harassment, it does not sufficiently demonstrate that respondent committed acts that would constitute harassment in the second degree (see Penal Law § 240.26 [3]; see also Family Ct Act § 812 [1]).

We have considered petitioner’s remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels and Kahn, JJ.

Matter of Aly T. v. Francisco B., 139 A.D.3d 597, 32 N.Y.S.3d 152 (N.Y. Ct. App. 2016).

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Opinion

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