Muldrew v. Mixon

237 A.D.2d 942, 654 N.Y.S.2d 912, 1997 N.Y. App. Div. LEXIS 3538

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1997
• Status: Published

Opinion

Appeal unanimously dismissed without costs. Memorandum: Family Court erred in granting an order of protection against respondent without conducting a fact-finding hearing. By petition dated November 21, 1995, petitioner sought an order of protection against respondent based on his having committed acts that constitute harassment in the second degree. Respondent, who was in prison, served a verified answer in which he denied petitioner’s allegations that he had committed such acts. At an appearance on the petition, respondent appeared by counsel and requested either an adjournment until he was out of jail, or a hearing on the petition. The court denied both requests and granted the petition. That was error. Because respondent denied the material allegations of the petition, he was entitled to a fact-finding hearing at which petitioner would be required to establish the allegations of the petition by a fair preponderance of the evidence (see, Family Ct Act § 832; see generally, Matter of Alice C. v Joseph C., 212 AD2d 698). We conclude, however, that the matter need not be remitted to Family Court for a hearing because the order of protection has already expired, rendering this appeal moot (see, Matter of Alice C. v Joseph C., supra). (Appeal from Order of Onondaga County Family Court, Paris, J.—Order of Protection.) Present—Den-man, P. J., Pine, Lawton, Balio and Boehm, JJ.