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In Re Marisela N., Petitioner-Respondent v. Lacy M.S.

New York Supreme Court Appellate Division, First Department


December 4, 2012

IN RE MARISELA N., PETITIONER-RESPONDENT,
v.
LACY M.S., RESPONDENT-APPELLANT.

Matter of Matter of Marisela N. v Lacy M.S.

Decided on December 4, 2012

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.

Saxe, J.P., Friedman, Acosta, Renwick, Freedman, JJ.

Order, Family Court, Bronx County (David B. Cohen, J.), entered on or about January 19, 2012, which, after a fact-finding hearing, granted petitioner an order of protection for two years, unanimously affirmed, without costs.

A fair preponderance of the evidence (see Family Ct Act § 832), including petitioner's testimony, supports the court's finding that respondent had committed acts that constitute the family offense of harassment in the second degree (see Family Ct Act § 812[1]; Penal Law § 240.26[3]), warranting the issuance of an order of protection (see Family Ct Act § 841). There is no basis to disturb the court's credibility determinations (see Matter of F.B. v W.B., 248 AD2d 119 [1st Dept 1998]).

The order of protection is valid despite the lack of a dispositional hearing. "There is no explicit statutory mandate that a dispositional hearing be conducted in proceedings under Family Court Act article 8" (Matter of Hazel P.R. v Paul J.P., 34 AD3d 307, 308 [1st Dept 2006]). In addition, respondent never demanded, or objected to the lack of, such a hearing (see Matter of Tonya B. v Matthew B., 90 AD3d 463, 463 [1st Dept 2011]). Moreover, since there is no other legal remedy available for the harassment proved against respondent and she "does not suggest any remedy other than issuance of an order of protection, a separate dispositional hearing would have served no purpose" (Matter of Annie C. v Marcellus W., 278 AD2d 177, 177-178 [1st Dept 2000]).

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

ENTERED: DECEMBER 4, 2012

CLERK

20121204

© 1992-2012 VersusLaw Inc.



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