Thelma U. v. Miko U.

• Decision Date: 13 December 2016
• Citation: 43 N.Y.S.3d 321,145 A.D.3d 527,2016 N.Y. Slip Op. 08331
• Parties: In re THELMA U., Petitioner–Appellant, v. MIKO U., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 527

43 N.Y.S.3d 321

2016 N.Y. Slip Op. 08331

In re THELMA U., Petitioner–Appellant,

v.MIKO U., Respondent–Respondent.

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

Dec. 13, 2016.

Tennille M. Tatum–Evans, New York, for appellant.

TOM, J.P., FRIEDMAN, SAXE, FEINMAN, KAHN, JJ.

Order, Family Court, New York County (Monica D. Shulman, Referee), entered on or about July 10, 2014, which, upon a fact-finding determination, inter alia, dismissed the petition seeking an order of protection due to insufficient evidence of a family offense, unanimously affirmed, without costs.

The determination that respondent's actions did not rise to the family offense of either disorderly conduct or harassment in the second degree is supported by a fair preponderance of the evidence (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept.2009] ; Penal Law §§ 240.20 and 240.26[3] ). The offense of disorderly conduct was necessarily dismissed since none of the acts alleged occurred in public, were intended to cause a public inconvenience, annoyance or alarm, or recklessly created such a risk (see Matter of Janice M. v. Terrance J., 96 A.D.3d 482, 945 N.Y.S.2d 693 [1st Dept.2012] ).

As for the offense of harassment in the second degree, petitioner failed to adduce evidence that would support a finding that respondent engaged in a course of conduct or repeatedly committed acts which alarmed or seriously annoyed petitioner, and which served no legitimate purpose (Penal Law § 240.26 [3 ] ). Petitioner's testimony that respondent had banged on the door because he was locked out did not establish conduct that served no legitimate purpose (see generally Matter of Marquardt v. Marquardt, 97 A.D.3d 1112, 948 N.Y.S.2d 484 [4th Dept.2012] ). Nor did respondent's use of foul and disparaging language to petitioner, although immature and inappropriate, rise to the level of harassment (see Matter of Lewis v. Robinson, 41 A.D.3d 996, 838 N.Y.S.2d 238 [3d Dept.2007] ; see also Matter of Christina MM. v. George MM., 103 A.D.3d 935, 959 N.Y.S.2d 758 [3d Dept.2013] ). Issues of credibility were properly resolved by the fact-finder (see Matter of F.B. v. W.B., 248 A.D.2d 119, 669 N.Y.S.2d 551 [1st Dept.1998] ).