Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of
counsel), for appellant.
Offices of Randall S. Carmel, Syosset (Randall S. Carmel of
counsel), for respondent.
Acosta, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.
Family Court, Bronx County (John J. Kelley, J.), entered on
or about June 30, 2015, which, inter alia, found that
respondent willfully violated two temporary orders of
protection, unanimously affirmed, without costs. Order, same
court and Judge, entered on or about July 8, 2015, which
issued a one-year order of protection against respondent,
affirmed, without costs.
was on notice of the conduct prohibited under the October 3,
2013 order of protection, with which he was served in court.
Despite his nonappearance in court on November 20, 2013, the
prominent warning on the face of the October 3, 2013 order
put respondent on fair notice that the order would be
extended (see People v Hopkins, 275 A.D.2d 667');">275 A.D.2d 667 [1st
Dept 2000], lv denied 95 N.Y.2d 935');">95 N.Y.2d 935 ).
April 3, 2014 email contained statements clearly intended to
harass petitioner, in violation of the order of protection
that was entered that same day (see Matter of Jaynie S. v
Gaetano D., 134 A.D.3d 473, 474 [1st Dept 2015], lv
denied 26 N.Y.3d 917');">26 N.Y.3d 917 ; Matter of Angela C. v
Harris K., 102 A.D.3d 588, 589 [1st Dept 2013]).
appeal from the July 8, 2015 order of protection has not been
rendered moot solely by the expiration of that order. As the
Court of Appeals held in Matter of Veronica P. v Radcliff
A. (24 N.Y.3d 668, 671 ), the "expiration of
the order of protection does not moot the appeal because the
order still imposes significant enduring consequences upon
respondent, who may receive relief from those consequences
upon a favorable appellate decision."
the appeal has not been rendered moot, we must consider the
merits of the order of protection, and we now find that it
was properly issued. Family Court Act § 846-a,
"Powers on failure to obey order, " is
"punitive [in] nature"; it prescribes the procedure
and penalties for failing to obey a temporary order of
protection (see Matter of Walker v Walker, 86 N.Y.2d
624, 629 ). Specifically, the court is permitted to
issue a new order of protection if the respondent is
"brought before the court for failure to obey [a]...
temporary order of protection issued pursuant to this act...
and if, after hearing, the court is satisfied by competent
proof that the respondent has willfully failed to obey...
such order." Under Family Court Act § 846-a the new
order of protection must be in accordance with Family Court
Act § 842, which permits a court to issue such an order
upon a finding "on the record that the conduct alleged
in the petition is in violation of a valid order of
the Family Court found, on the record after a hearing, that
respondent had willfully violated the temporary order of
protection with his April 3, 2014 emails containing
statements clearly intended to harass petitioner. As a result
of this determination, the Family Court conducted a
dispositional hearing on respondent's violation of the
temporary order of protection, and thereafter issued a new
order of protection. The Family Court adhered to the
prescribed procedure and did not exceed its jurisdiction by
issuing this final order of protection. 
dissenting colleague contends that Family Court Act §
846-a must be read to provide that a "final" order
of protection can only be issued upon the Family Court's
determination that: (1) the respondent willfully violated a
final order of protection that itself was issued upon a
finding that a family offense was committed; or (2) the
respondent's violation of a temporary order of protection
constituted a family offense; or (3) the respondent's
violation of a final order of protection constituted a family
offense. There is no support in the statute or in the case
law for this proposition. The dissent's argument would
require this Court to read language into the statute that is,
simply, not there. Family Court Act § 846-a does not
require a finding of the commission of a family offense.
dissent's reliance on Family Court Act § 812 is
misplaced, since that section addresses concurrent
jurisdiction between the Family Court and Criminal Court.
Family Court Act § 841 - "Orders of
disposition" - also does not save the dissent's
argument, as that section provides that the court may, upon a
determination that no family offense has been committed,
dismiss the petition. Moreover, as previously stated, we read
Family Court Act § 846-a as prescribing the remedies
available to the court when a respondent violates a temporary
order of protection, which is what is at issue here.
case of Matter of V.C. v H.C. (257 A.D.2d 27');">257 A.D.2d 27 [1st
Dept 1999]), cited by our dissenting colleague, is inapposite
and simply details the steps a court should take when a
family offense is found to have been committed; it does not
dictate that the finding of a family offense must exist
before an order of protection can be issued. Moreover, the
court in Matter of V.C. did not address Family Court
Act § 846-a. Matter of Mary C. v Anthony C. (61
A.D.3d 682 [2nd Dept 2009]) and Matter of Steinhilper v
Decker (35 A.D.3d 1101');">35 A.D.3d 1101 [3rd Dept 2006]) also do not
dictate that a finding that the respondent committed a family
offense must exist in order for the court to issue an order
of protection. Rather, in both cases, the courts focused on
the allegations in the petitions and the fact that the
alleged acts did not constitute acts specifically enumerated
in Family Court Act § 812, and thus concluded that they
lacked subject matter jurisdiction over the family offense
proceedings and dismissed the petitions. Such is not the case
here, where the petition before the court alleged acts that
are specifically enumerated in Family Court Act § 812.
considered respondent's remaining contentions and ...