Opinion
CAF 02-00097
May 2, 2003.
Appeal from an order of Family Court, Erie County (Mix, J.), entered November 2, 2001, which dismissed the petition.
DAVID J. PAJAK, BUFFALO, FOR PETITIONER-APPELLANT.
PRESENT: PINE, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law and facts without costs and the petition and an order of protection are granted in accordance with the Memorandum that is hereby made a part hereof. All findings of fact made by Family Court that are inconsistent with the Memorandum herein are hereby reversed and new findings are made pursuant to CPLR 5712(c) as contained in the following Memorandum:
Petitioner brought this proceeding pursuant to Family Ct Act 846, alleging that respondent had willfully violated an order of protection issued by Family Court on September 1, 1999 and seeking a new order of protection pursuant to Family Ct Act 846-a. Following a fact-finding hearing, the court dismissed the petition on the ground that petitioner had not made out a "prima-facie case" establishing respondent's willful violation of the order of protection. That was error. The testimony of petitioner and her father, and indeed that of respondent himself, established that respondent willfully violated the "[s]tay away" provision of the order of protection. In addition, the testimony of petitioner established that respondent violated the further provision that respondent refrain from intimidation and threats against petitioner. The court's determination thus lacks an evidentiary basis in the record and is against the weight of the credible evidence ( cf. Matter of Toneatti v. Schiavone, 266 A.D.2d 303; Matter of Truick v. Truick, 243 A.D.2d 572; see generally Matter of Eamer v. Keller, 283 A.D.2d 981; Matter of Stappenbeck v. Sitter, 280 A.D.2d 908). In the exercise of our independent power of factual review, we credit the entire testimony of petitioner and her father and the aforementioned testimony of respondent himself ( see Matter of Sean T. [appeal No. 2] , 302 A.D.2d 990 [Feb. 7, 2003], citing Matter of Michael C., 170 A.D.2d 998, 999) and find that respondent willfully violated the order of protection ( see generally 846-a; Matter of De Ruzzio v. De Ruzzio, 288 A.D.2d 725, 726; Matter of Leighton-Ryan v. Ryan, 274 A.D.2d 517, 775, 776; Benitez v. Murati, 262 A.D.2d 79, lv denied 94 N.Y.2d 760; Matter of Tina T. v. Steven U., 243 A.D.2d 863, 864, lv denied 91 N.Y.2d 805). Pursuant to Family Ct Act 846-a, we "make a new order of protection in accordance with" Family Ct Act 842 ( see Matter of Kappel v Kappel, 234 A.D.2d 872, 873). We find that there are "aggravating circumstances," namely, "a history of repeated violations of [the] prior order of protection by the respondent * * * and like incidents, behaviors and occurrences which * * * constitute an immediate and ongoing danger to the petitioner" (827 [a] [vii]; see generally Matter of Flascher v. Flascher, 298 A.D.2d 393; Matter of Rice v. Rice, 280 A.D.2d 677, 678; Matter of Reilly v. Reilly, 254 A.D.2d 361). We therefore reverse the order, grant the petition, and further grant petitioner an order of protection for a period of three years ( see 842) from the date of our order, on the same terms and conditions as those contained in the order of protection granted by Family Court on September 1, 1999.