Opinion
11566 Dkt. O-27428-15/15C
05-28-2020
In re CHERYL H., Petitioner–Respondent, v. CLEMENT H., Respondent–Appellant.
Diaz & Moskowitz, PLLC, New York (Hani M. Moskowitz of counsel), for appellant.
Diaz & Moskowitz, PLLC, New York (Hani M. Moskowitz of counsel), for appellant.
Friedman, J.P., Gische, Webber, Gesmer, Oing, JJ.
Order, Family Court, Bronx County (Tracey A. Bing, J.), entered on or about December 15, 2017, which, after a hearing, found that respondent husband violated a temporary order of protection and committed the family offense of harassment in the second degree ( Penal Law § 240.26[1] ), granted petitioner wife a two-year order of protection against respondent and directed him to pay petitioner's attorney's fees in the amount of $2,275, unanimously affirmed, without costs.
Petitioner established by a fair preponderance of the evidence that respondent willfully violated the temporary order of protection, by engaging in conduct which constituted harassment in the second degree (see Family Ct Act § 846–a ; Matter of Tina T. v. Steven U., 243 A.D.2d 863, 864, 663 N.Y.S.2d 307 [3d Dept. 1997], lv denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632 [1998] ). Specifically, petitioner testified that in November 2015, respondent slapped her across the face after she refused to discuss reconciliation. There exists no basis to disturb Family Court's credibility determinations (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ). Based on respondent's willful violation of the temporary order of protection, the court providently exercised its discretion in awarding attorney's fees (see Family Ct Act § 846–a ; Matter of Birch v. Sayegh, 9 A.D.3d 514, 516–517, 779 N.Y.S.2d 310 [3d Dept. 2004] ), especially in view of the court's finding that respondent was evasive and incredible as to his finances.