Smith v. Falco-Boric

Appellate Division of the Supreme Court of New York

Smith v. Falco-Boric

87 A.D.3d 1146, 929 N.Y.2d 870

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

DecidedSeptember 27, 2011

StatusPublished

Cited by6 cases

This text of 87 A.D.3d 1146 (Smith v. Falco-Boric) 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

Smith v. Falco-Boric, 87 A.D.3d 1146, 929 N.Y.2d 870 (N.Y. Ct. App. 2011).

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Opinion

Although the order of protection expired by its own terms on August 12, 2011, the appeal has not been rendered academic in light of “the enduring consequences which may potentially flow from a finding that the appellant committed a family offense” (Matter of Willis v Rhinehart, 76 AD3d 641, 642 [2010]; see [1147]*1147Matter of Wallace v Wallace, 45 AD3d 599 [2007]; Matter of Hogan v Hogan, 271 AD2d 533 [2000]).

The Family Court failed to state on the record the facts which it deemed essential to its determination to grant the petition for an order of protection (see CPLR 4213 [b]; Matter of Jose L.I., 46 NY2d 1024, 1025-1026 [1979]; Matter of Destiny H. [Valerie B.], 83 AD3d 939 [2011]). However, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Jose L.I., 46 NY2d at 1026; Matter of Destiny H. [Valerie B.], 83 AD3d 939 [2011]). The record does not support the Family Court’s finding, in effect, that the appellant committed a family offense warranting the issuance of an order of protection (see Family Ct Act § 812).

In light of our determination, we need not reach the appellant’s remaining contentions. Angiolillo, J.E, Balkin, Hall and Cohen, JJ., concur.

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Although the order of protection expired by its own terms on August 12, 2011, the appeal has not been rendered academic in light of “the enduring consequences which may potentially flow from a finding that the appellant committed a family offense” (Matter of Willis v Rhinehart, 76 AD3d 641, 642 [2010]; see [1147]*1147Matter of Wallace v Wallace, 45 AD3d 599 [2007]; Matter of Hogan v Hogan, 271 AD2d 533 [2000]).

The Family Court failed to state on the record the facts which it deemed essential to its determination to grant the petition for an order of protection (see CPLR 4213 [b]; Matter of Jose L.I., 46 NY2d 1024, 1025-1026 [1979]; Matter of Destiny H. [Valerie B.], 83 AD3d 939 [2011]). However, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Jose L.I., 46 NY2d at 1026; Matter of Destiny H. [Valerie B.], 83 AD3d 939 [2011]). The record does not support the Family Court’s finding, in effect, that the appellant committed a family offense warranting the issuance of an order of protection (see Family Ct Act § 812).

In light of our determination, we need not reach the appellant’s remaining contentions. Angiolillo, J.E, Balkin, Hall and Cohen, JJ., concur.

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Bluebook (online)

87 A.D.3d 1146, 929 N.Y.2d 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-falco-boric-nyappdiv-2011.

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