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Marie G. v. Christopher W.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 16, 2008

IN RE MELISSA MARIE G., PETITIONER-RESPONDENT,
v.
JOHN CHRISTOPHER W., RESPONDENT-APPELLANT.

Order of protection, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about April 17, 2007, directing respondent, inter alia, to stay away from petitioner, and to stay away from the parties' child except for court-ordered visitation, both for a period of five years, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Nardelli, Sweeny, DeGrasse, Freedman, JJ.

A preponderance of the evidence (Family Ct Act § 832) supports Family Court's findings that respondent committed acts constituting the family offenses of assault in the third degree, attempted assault in the third degree, menacing in the third degree, and harassment in the second degree (Family Ct Act § 812), and that such acts caused petitioner physical injury warranting a five-year order of protection (Family Ct Act § 842, § 827[a][vii]). No basis exists to disturb the court's findings of credibility (see Matter of Hunt v Hunt, 51 AD3d 924, 925 [2008]). While it was not an improper exercise of discretion to permit petitioner's rebuttal witness to contradict respondent's testimony about a collateral matter, even if it were, the error was harmless since the rebuttal testimony did not directly implicate respondent in the alleged family offenses (see People v Lucas, 160 AD2d 330 [1990], lv denied 76 NY2d 860 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081216

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