Opinion
12180 Dkt No. O-14051-17 Case No. 2019-05108
10-27-2020
In re MELINDA B., Petitioner-Respondent, v. JONATHAN L. P., Respondent-Appellant.
Carol L. Kahn, New York, for appellant. Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent. Janet Neustaetter, The Children's Law Center, Brooklyn (Chai Park of counsel), attorney for child.
Carol L. Kahn, New York, for appellant.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Janet Neustaetter, The Children's Law Center, Brooklyn (Chai Park of counsel), attorney for child.
Kapnick, J.P., Webber, Gonza´lez, Shulman, JJ.
Order, Family Court, Bronx County (Emily Morales-Minerva, J.), entered on or about October 22, 2019, which, upon a fact-finding determination that respondent-father committed the family offense of harassment in the first or second degree, granted a two-year order of protection in favor of petitioner, unanimously affirmed, without costs.
We agree with Family Court that a fair preponderance of the evidence presented at the hearing established that respondent's actions constituted the family offense of harassment in the second degree. Respondent's behavior, in attempting to strike petitioner with a bat, shoving her into a wall, and threatening the subject child, were done with the intent to alarm or seriously annoy petitioner and served no legitimate purpose (see Family Ct. Act §§ 812 [1] ; 832; Penal Law § 240.26 [3] ; see Matter of Chu Man Woo v. Qiong Yun Xi , 106 A.D.3d 818, 964 N.Y.S.2d 647 [2d Dept. 2013] ).
Contrary to respondent's contentions, Family Court did not violate his due process rights by including in its order events to which respondent testified but which were not contained in the original family offense petition. Family Court had the authority to conform petitioner's pleadings to the proof, sua sponte ( Oksoon K. v. Young K. , 115 A.D.3d 486, 981 N.Y.S.2d 423 [1st Dept. 2014], citing O'Neill v. New York Univ. , 97 A.D.3d 199, 209, 944 N.Y.S.2d 503 [1st Dept. 2012], lv denied 24 N.Y.3d 902, 2014 WL 4454914 [2014] ; see also Cave v. Kollar , 2 A.D.3d 386, 388, 767 N.Y.S.2d 856 [2d Dept. 2003] ). Given that Family Court's determination rested squarely on respondent's admissions, and that respondent was neither hindered in preparation of his case nor suffered any prejudice due to surprise, the court properly conformed the pleadings to the proof.
We also agree that the issuance of a two-year order of protection in petitioner's favor was a provident exercise of discretion ( Family Ct. Act §§ 842[a] ; [c] ).