Martinez v. Martinez

• Decision Date: 13 March 2019
• Docket Number: 2018–00113,2018–00114,Docket No. O–5595–16
• Citation: 170 A.D.3d 846,93 N.Y.S.3d 880 (Mem)
• Parties: In the Matter of Guadalupe Vidal MARTINEZ, Respondent, v. Everado Israel MARTINEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 846

93 N.Y.S.3d 880 (Mem)

In the Matter of Guadalupe Vidal MARTINEZ, Respondent,

v.Everado Israel MARTINEZ, Appellant.

2018–00113

2018–00114

Docket No. O–5595–16

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 1, 2019

March 13, 2019

Helene Chowes, New York, NY, for appellant.

Sullivan & Cromwell, LLP, New York, N.Y. (Aaron J. Gold of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, Everado Israel Martinez appeals from (1) an order of fact-finding and disposition of the Family Court, Queens County (Dweynie E. Paul, J.), dated November 15, 2017, and (2) an order of protection of the same court, also dated November 15, 2017. The order of fact-finding and disposition, after fact-finding and dispositional hearings, found that Everado Israel Martinez committed the family offenses of harassment in the second degree and disorderly conduct. The order of protection, inter alia, directed Everado Israel Martinez to stay away from the petitioner for a period up to and including March 19, 2018.

ORDERED that the order of fact-finding and disposition and the order of protection are affirmed, without costs or disbursements.

The parties, who were never married, lived together from 2006 to February 29, 2016. On March 18, 2016, the petitioner filed a family offense petition in the Family Court seeking an order of protection against the appellant, alleging that he had committed family offenses against her. Following a fact-finding hearing, the court determined that the appellant's conduct constituted the family offenses of harassment in the second degree and disorderly conduct. The court issued an order of protection directing that the appellant stay away from the petitioner for a period up to and including March 19, 2018.

Although the order of protection expired by its own terms, the appeal from that order has not been rendered academic "given the totality of [its] enduring legal and reputational consequences" ( Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 673, 3 N.Y.S.3d 288, 26 N.E.3d 1143 ; see Matter of Blamoville v. Culbertson, 151 A.D.3d 1058, 1059, 58 N.Y.S.3d 463 ).

"A family offense must be established by a fair preponderance of the evidence" ( Matter of Washington v. Washington, 158 A.D.3d 717, 718, 70 N.Y.S.3d 560 ; see Family Ct. Act § 832 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court" ( Matter of Washington v. Washington, 158 A.D.3d at 718, 70 N.Y.S.3d 560 ; see Matter of Magana v. Delph, 163 A.D.3d 673, 674, 76 N.Y.S.3d 845 ; Matter of Pierre v. Dal, 142 A.D.3d 1021, 1023, 37 N.Y.S.3d 317 ). The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Matter of Washington v. Washington, 158 A.D.3d at 718, 70...