Opinion
06-18-2024
In the Matter of N.V., Petitioner–Respondent, v. A. J., Respondent–Appellant.
Bruce A. Young, New York, for appellant. Marion C. Perry, New York, for respondent.
Bruce A. Young, New York, for appellant.
Marion C. Perry, New York, for respondent.
Manzanet–Daniels, J.P., Kennedy, Scarpulla, Shulman, Higgitt, JJ.
Order, Family Court, New York County (Jacob K. Maeroff, Referee), entered on or about September 9, 2022, which, after a hearing, determined that respondent committed the family offenses of harassment in the second degree and attempted assault and issued a two-year order of protection in favor of petitioner, unanimously affirmed, without costs.
A fair preponderance of the evidence supports Family Court’s finding that respondent committed the offenses of harassment in the second degree and attempted assault (see Family Ct Act § 832). Petitioner’s testimony that respondent threw bleach water on her, causing the water to go into her eyes and onto her body, kicked her in the stomach, causing her to fall, and threw a bucket at her, supports the finding that respondent committed harassment in the second degree (Penal Law § 240.26[1]) and attempted assault (id. §§ 110.00, 120.00; see Matter of Brooke A.D. v. Rajiv D., 199 A.D.3d 407, 408, 158 N.Y.S.3d 6 [1st Dept. 2021]). There exists no basis for disturbing the court’s credibility findings (see Matter of Sheila N. v. Rudy N., 184 A.D.3d 514, 515, 124 N.Y.S.3d 538 [1st Dept. 2020]). The testimony of the parties’ older sister that she smelled bleach and saw the bucket, the water on the floor, and petitioner’s discolored shoes and petitioner washing out her eyes corroborates petitioner’s testimony. This "single incident is legally sufficient to support a finding of harassment in the second degree" (Matter of Tamara A. v. Anthony Wayne S., 110 A.D.3d 560, 561, 974 N.Y.S.2d 48 [1st Dept. 2013]).
"The issuance of the order of protection was appropriate because it will likely be helpful in eradicating the root of the family disturbance and protect petitioner" (Matter of Rosa G. v. Hipolito D., 215 A.D.3d 571, 571, 187 N.Y.S.3d 615 [1st Dept. 2023]). Petitioner’s delay of 17 months in filing the petition after the incident does not provide a basis for vacating the order (see Matter of Rushane P. v. Boris L.R., 161 A.D.3d 510, 510, 73 N.Y.S.3d 425 [1st Dept. 2018]; Family Ct Act § 812[1]). Petitioner’s delay was not inconsistent with the need for protection, and she testified that she commenced this proceeding shortly after learning that respondent planned to move back to New York and reside in the apartment where she lived.
The order of protection is valid despite the lack of a dispositional hearing (see Matter of Marisela N. v. Lacy M.S., 101 A.D.3d 425, 425, 955 N.Y.S.2d 322 [1st Dept. 2012]). "There is no explicit statutory mandate that a dispositional hearing be conducted in proceedings under Family Court Act article 8," and "respondent never demanded, or objected to the lack of, such a hearing" before the Family Court (id. [internal quotation marks omitted]). Respondent’s assertion that the Family Court lacked jurisdiction over the petition or exceeded its discretion because petitioner used the article 8 process to obtain the exclusive right to the family apartment is unsupported by the record.
We have considered respondent’s remaining arguments and find them unavailing.