Thomas v. Thomas

Appellate Division of the Supreme Court of New York

Thomas v. Thomas

32 A.D.3d 521, 820 N.Y.S.2d 316

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

DecidedAugust 22, 2006

StatusPublished

Cited by9 cases

This text of 32 A.D.3d 521 (Thomas v. Thomas) 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

Thomas v. Thomas, 32 A.D.3d 521, 820 N.Y.S.2d 316 (N.Y. Ct. App. 2006).

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Opinion

In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from an order of protection of the Family Court, Suffolk County (Freundlich, J), dated March 4, 2005, which, after a hearing, and upon a finding that he committed a family offense within the meaning of Family Court Act § 812, directed, inter alia, that he stay away from the wife until March 4, 2007.

Ordered that the order of protection is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

In the petition, the wife alleged that in July 2002, July 2004, December 2004 and January 2005, the husband committed acts constituting aggravated harassment in the second degree and assault in the third degree. Following a hearing, the Family Court found that the husband committed a family offense based upon an incident that allegedly occurred in July 2002. The Family Court dismissed the remaining counts alleged in the petition. The Family Court then issued an order of protection, wherein it directed, inter alia, that the husband stay away from the wife until March 4, 2007. We reverse.

The evidence adduced at the hearing failed to support a finding that in July 2002 the husband committed acts which would constitute either aggravated harassment in the second degree (see Penal Law § 240.30) or assault in the third degree (see Penal Law § 120.00). Further, the order of protection is based upon acts which allegedly occurred in July 2002. Those events were not “relatively contemporaneous” (Swersky v Swersky, 299 AD2d 540, 541 [2002]; see Yoba v Yoba, 183 AD2d 418 [1992]). Accordingly, the Family Court should have denied the petition and dismissed the proceeding.

[522]*522In light of this determination, we need not address the husband’s remaining contentions. Miller, J.P., Crane, Luciano and Rivera, JJ., concur.

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In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from an order of protection of the Family Court, Suffolk County (Freundlich, J), dated March 4, 2005, which, after a hearing, and upon a finding that he committed a family offense within the meaning of Family Court Act § 812, directed, inter alia, that he stay away from the wife until March 4, 2007.

Ordered that the order of protection is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

In the petition, the wife alleged that in July 2002, July 2004, December 2004 and January 2005, the husband committed acts constituting aggravated harassment in the second degree and assault in the third degree. Following a hearing, the Family Court found that the husband committed a family offense based upon an incident that allegedly occurred in July 2002. The Family Court dismissed the remaining counts alleged in the petition. The Family Court then issued an order of protection, wherein it directed, inter alia, that the husband stay away from the wife until March 4, 2007. We reverse.

The evidence adduced at the hearing failed to support a finding that in July 2002 the husband committed acts which would constitute either aggravated harassment in the second degree (see Penal Law § 240.30) or assault in the third degree (see Penal Law § 120.00). Further, the order of protection is based upon acts which allegedly occurred in July 2002. Those events were not “relatively contemporaneous” (Swersky v Swersky, 299 AD2d 540, 541 [2002]; see Yoba v Yoba, 183 AD2d 418 [1992]). Accordingly, the Family Court should have denied the petition and dismissed the proceeding.

[522]*522In light of this determination, we need not address the husband’s remaining contentions. Miller, J.P., Crane, Luciano and Rivera, JJ., concur.

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32 A.D.3d 521, 820 N.Y.S.2d 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-thomas-nyappdiv-2006.

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