Swersky v. Swersky

299 A.D.2d 540, 750 N.Y.S.2d 509

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2002
• Status: Published

Opinion

In an action, inter alia, to recover damages for assault and intentional infliction of emotional distress, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Raab, J.), dated September 10, 2001, as denied her motion for a permanent order of protection, and, sua sponte, granted summary judgment to the defendant dismissing the complaint.

Ordered that the notice of appeal from so much of the order as, sua sponte, granted summary judgment to the defendant dismissing the complaint is treated as an application for leave to appeal from that part of the order, and leave to appeal is granted (see CPLR 5701 [c]).

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the plaintiff’s motion for a permanent order of protection. The events upon which the plaintiff relied occurred over five years earlier. The events were not “relatively contemporaneous” (Yoba v Yoba, 183 AD2d 418) to support a finding of aggravated circumstances or that the defendant posed an “immediate and ongoing danger” to the plaintiff within the meaning of Family Court Act § 827. Further, in the absence of disputed issues of fact, the Supreme Court was warranted in granting summary judgment in favor of the defendant (see CPLR 3212 [b]). Prudenti, P.J., Santucci, H. Miller and Cozier, JJ., concur.