Miloslau v. Miloslau
| Decision Date | 04 December 2013 |
| Citation | 2013 N.Y. Slip Op. 08084,112 A.D.3d 632,975 N.Y.S.2d 894 |
| Parties | In the Matter of Patrice MILOSLAU, respondent, v. Michael MILOSLAU, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Lieberman & LeBovit, Yorktown Heights, N.Y. (Mitchell P. Lieberman), for appellant.
Del Atwell, East Hampton, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Michael Miloslau appeals from an order of protection of the Family Court, Putnam County (Rooney, J.), entered July 18, 2012, which, after a hearing, and upon a finding that he committed the family offense of harassment in the second degree, directed him, inter alia, to stay away from Patrice Miloslau and, in effect, the marital residence, until and including July 16, 2014.
ORDERED that the order of protection is affirmed, without costs or disbursements.
In a family offense proceeding, the petitioner has the burden of establishing the allegations contained in the petition by a “fair preponderance of the evidence” (Family Ct. Act § 832; see Matter of Testa v. Strickland, 99 A.D.3d 917, 951 N.Y.S.2d 910; Matter of Thomas v. Thomas, 72 A.D.3d 834, 835, 898 N.Y.S.2d 495). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Kondor v. Kondor, 109 A.D.3d 660, 971 N.Y.S.2d 21; Matter of Shields v. Brown, 107 A.D.3d 1005, 1006, 966 N.Y.S.2d 900; Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 898 N.Y.S.2d 585). Here, a fair preponderance of the credible evidence supports the Family Court's determination that the appellant committed the family offense of harassment in the second degree ( see Penal Law § 240.26[1]; Family Ct. Act §§ 812, 832; Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793; Matter of Scanziani v. Hairston, 100 A.D.3d 1007, 1008, 955 N.Y.S.2d 162).
Under the circumstances presented, the Family Court's failure to hold a dispositional hearing prior to issuing the order of protection does not require reversal ( see Matter of Sperling v. Sperling, 96 A.D.3d 1067, 946 N.Y.S.2d 877; Matter of Sblendorio v. D'Agostino, 60 A.D.3d 773, 773–774, 877 N.Y.S.2d 92; Matter of Hassett v. Hassett, 4 A.D.3d 527, 771 N.Y.S.2d 720). In addition, the order of protection, which directed the...
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