Opinion
05-10-2016
In re IRMA A., Petitioner–Respondent, v. DAVID A., Respondent–Appellant.
Tennille M. Tatum–Evans, New York, for appellant. Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Tennille M. Tatum–Evans, New York, for appellant.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Opinion Order, Family Court, New York County (Mary E. Bednar, J.), entered on or about March 13, 2015, which, upon a finding that respondent had committed the family offense of menacing in the second degree, granted petitioner an order of protection directing respondent to, among other things, stay away from petitioner and her children for one year, unanimously affirmed, without costs. Petitioner established by a fair preponderance of the evidence that respondent had committed the family offense of menacing in the second degree (see Family Ct. Act §§ 812[1] ; 832; Penal Law § 120.14[1] ; see People v. Bartkow, 96 N.Y.2d 770, 772, 725 N.Y.S.2d 589, 749 N.E.2d 158 [2001] ). Petitioner testified that in October 2013, respondent confronted her in her lobby, at 1:30 a.m., holding a broken bottle, accused her of cheating on him with another man, and threatened to kill her and her family if she went to the police or took him to court. Petitioner's allegations in the petition adequately put respondent on notice of the October 2013 incident (see Matter of Little v. Renz, 90 A.D.3d 757, 757, 934 N.Y.S.2d 331 [2d Dept. 2011] ), and the record supports Family Court's determination to credit petitioner's testimony (see Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 454, 931 N.Y.S.2d 4 [1st Dept.2011] ).
The doctrine of res judicata did not bar Family Court from making a finding based on the October 2013 incident. Petitioner's first petition regarding the incident was dismissed “without prejudice” based on her failure to appear; such a dismissal is not a final determination on the merits for res judicata purposes (see Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13, 862 N.Y.S.2d 316, 892 N.E.2d 380 [2008] ).
MAZZARELLI, J.P., RENWICK, SAXE, GISCHE, KAHN, JJ., concur.