Pesce v. Pesce

223 A.D.2d 647, 637 N.Y.S.2d 18, 1996 N.Y. App. Div. LEXIS 419

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1996
• Status: Published

Opinion

In a proceeding pursuant to Family Court Act article 8 for a permanent order of protection, the petitioner appeals from an order of the Family Court, Westchester County (Bellantoni, J.), entered July 19, 1994, which, after a fact-finding hearing, dismissed the petition. The petitioner’s notice of appeal from the decision is deemed a premature notice of appeal from the order (see, CPLR 5520 [c]).

Ordered that the order is reversed, on the law and the facts, with costs, the petition is reinstated, and the matter is remitted to the Family Court, Westchester County, for a dispositional hearing and entry of an appropriate order of disposition; and it is further,

Ordered that the order of this Court dated July 18, 1994, which continued the terms of the temporary order of protection dated March 24, 1994, pending hearing and determination of the appeal, shall remain in effect pending entry of an order of disposition.

Contrary to the Family Court’s determination, the petitioner established by a preponderance of the evidence that the respondent committed acts constituting, inter alia, harassment and disorderly conduct, warranting the issuance of an order of protection against him (see, Family Ct Act § 812 [1]; § 832; Penal Law § 240.26 [3]; § 240.20 [7]; Matter of Holcomb v Holcomb, 176 AD2d 409; Matter of Rogers v Rogers, 161 AD2d 766; Merola v Merola, 146 AD2d 611). Accordingly, the matter is remitted to the Family Court for a dispositional hearing (see, Family Ct Act § 833). Rosenblatt, J. P., Hart, Krausman and Goldstein, JJ., concur.