Matter of Aly T. v. Francisco B. , 32 N.Y.S.3d 152 ( 2016 )

Matter of Aly T. v Francisco B. (2016 NY Slip Op 04095)

Matter of Aly T. v Francisco B.

2016 NY Slip Op 04095

Decided on May 26, 2016

Appellate Division, First Department

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.

Decided on May 26, 2016
Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels, Kahn, JJ.

1253

[*1]In re Aly T., Petitioner-Appellant,

v

Francisco B., Respondent-Respondent.

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.

Bruce K. Bentley, New York, for respondent.

Order, Family Court, Bronx County (Lauren N. Lerner, Referee), entered on or about July 28, 2015, which, after a fact-finding hearing, dismissed the petition for an order of protection against respondent, unanimously affirmed, without costs.

Petitioner failed to establish by a preponderance of the evidence that respondent, the father of two of her children, committed any of the family offenses alleged in the petition, including harassment in the second degree, so as to justify the issuance of an order of protection (see Matter of Mildred R. v Elizabeth R., 131 AD3d 892 [1st Dept 2015], lv denied 26 NY3d 913 [2015]). Although petitioner's testimony and evidence as to the photograph posted on respondent's Facebook page meets the definition in common parlance of harassment, it does not sufficiently demonstrate that respondent committed acts that

would constitute harassment in the second degree (see Penal Law § 240.26[3]; see also Family Ct Act § 812[1]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 26, 2016

CLERK