Holcomb v. Holcomb
| Decision Date | 19 September 1991 |
| Citation | 574 N.Y.S.2d 115,176 A.D.2d 409 |
| Parties | In the Matter of Susan W. HOLCOMB, Respondent, v. Timothy W. HOLCOMB, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Timothy J. Lawliss, Plattsburgh, for appellant.
Danny J. Ducharme, Plattsburgh, for respondent.
Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and CREW, JJ.
Appeal from an order of the Family Court of Clinton County (Lewis, J.), entered May 3, 1990, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Court Act article 8, for an order of protection.
Upon our review of the record, we find that petitioner has demonstrated by a fair preponderance of the evidence (Family Ct. Act § 832) that respondent engaged in conduct which constituted harassment and, therefore, he committed a family offense within the meaning of Family Court Act § 812 (see, Matter of Rogers v. Rogers, 161 A.D.2d 766, 556 N.Y.S.2d 114). The unrefuted testimony of petitioner establishes that, on the dates specified, respondent threw things at petitioner, pushed her down the stairs and shoved her out the door. In addition, the circumstances surrounding respondent's actions demonstrate that the element of intent was present. Finally, the fact that Penal Law § 240.25(2) has been found to be unconstitutional is of no consequence in this case because Family Court did not specifically base its finding of harassment on that section.
ORDERED that the order is affirmed, with costs.
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