Opinion
6965
06-26-2018
In re JISSELLE F., Petitioner–Respondent, v. JOSE T., Respondent–Appellant.
Leslie S. Lowenstein, Woodmere, for appellant.
Leslie S. Lowenstein, Woodmere, for appellant.
Renwick, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
Order, Family Court, New York County (Gail A. Adams, Referee), entered on or about October 11, 2016, which, after a hearing, found that respondent committed a family offense and ordered him to stay away from petitioner and petitioner's dog for one year, unanimously affirmed, without costs.
Although the court did not specify the degree of harassment it found respondent to have committed, a fair preponderance of the evidence supports a finding of harassment in the second degree ( Penal Law § 240.26[3] ), one of the enumerated offenses upon which the issuance of an order of protection may be premised ( Family Ct. Act § 812[1] ; see Matter of Lorin F. v. Jason D., 156 A.D.3d 548, 549, 65 N.Y.S.3d 700 [1st Dept. 2017] ). There exists no basis to disturb the credibility findings of the Referee (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ).
The record shows that respondent, who was petitioner's father-in-law, had been staying in petitioner's apartment, in which petitioner and her husband (respondent's son) lived with their dog, for an extended period of time. When the living situation became too strained, petitioner's husband asked respondent to vacate the apartment. Respondent, however, proceeded to threaten petitioner physically and inappropriately propositioned her, broke personal items in the apartment, walked around naked, and hit and attempted to poison petitioner's dog. During this time, respondent maintained that the apartment was his, notwithstanding that petitioner's husband had resided there for six years and his was the only name on the lease. Indeed, respondent was unable to produce a lease for the apartment with his name on it, and his explanation for his failure to do so was not believable. By his own admission, although he ostensibly had vacated the apartment, he returned to the apartment to shower, nap and change when petitioner and her husband were not home, despite the fact that petitioner's husband had never given him a key. Petitioner testified that as a result of respondent's conduct, she felt threatened and feared for her safety.