| Matter of Chadwick F. v Hilda G. |
| 2010 NY Slip Op 07436 [77 AD3d 1093] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Chadwick F., on Behalf of Lynnea H., an Infant,Respondent, v Hilda G., Appellant. |
—[*1] Norbert Higgins, Binghamton, for respondent.
Egan Jr., J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered September 18, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, for an order of protection.
Petitioner commenced this family offense proceeding on behalf of his daughter seeking anorder of protection against respondent, petitioner's mother, who had been residing with him andhis daughter. The petition alleged that respondent had committed the family offense ofharassment, disorderly conduct and reckless endangerment. After issuing a temporary order ofprotection against respondent and following a hearing at which both petitioner and respondenttestified, Family Court found that respondent had committed the offense of harassment, andissued an order of protection requiring her to stay away from petitioner's residence for oneyear.[FN*]Respondent now appeals arguing that petitioner did not establish that she committed harassmentin the second degree.
A petitioner bears the burden of proving by a preponderance of the evidence that [*2]respondent committed a family offense (see Family Ct Act§ 832; Matter of Charles E. vFrank E., 72 AD3d 1439, 1441 [2010]). " '[A] person is guilty of harassment in thesecond degree when, with intent to harass, annoy or alarm another person: . . . He orshe engages in a course of conduct or repeatedly commits acts which alarm or seriously annoysuch other person and which serve no legitimate purpose' " (Matter of Eck v Eck, 44 AD3d 1168, 1169 [2007], lvdenied 9 NY3d 818 [2008], quoting Penal Law § 240.26 [3]).
At the hearing on this matter, petitioner testified that, while respondent lived with him andhis daughter in a rented home, respondent repeatedly taped the windows shut, sealed electricaloutlets and tampered with the thermostat. Petitioner also testified that respondent repeatedlythreatened to "do what she could to make [him] lose [his] child." Finally, petitioner testified that,on one occasion, he observed respondent urinating in a cooking pot in the kitchen. Petitionertestified that respondent's actions alarmed and annoyed him, and the behavior continued evenafter he requested that she stop.
Here, allegations that respondent taped the windows and sealed the outlets fail to establishthat she intended to harass, alarm or annoy petitioner, especially in light of petitioner's owntestimony that respondent's actions in this regard were to avoid both dust and heat loss. Likewise,testimony that respondent urinated in a cooking pot on one occasion does not establish a courseof conduct sufficient to support a finding of harassment (see People v Wood, 59 NY2d811, 812 [1983]). However, because the element of intent can be inferred from her multiple andunsubstantiated threats to report petitioner for parental misconduct (see Matter of ChristinaLL., 233 AD2d 705, 709 [1996], lv denied 89 NY2d 812 [1997]), in accordingFamily Court's determination the proper deference (see Matter of Eck v Eck, 44 AD3d at1169), we find that these threats are sufficient to support Family Court's findings (see Matter of Boulerice v Heaney, 45AD3d 1217, 1219 [2007]; Matter of Machukas v Wagner, 246 AD2d 840, 843[1998], lv denied 91 NY2d 813 [1998]).
Spain, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Family Court did not specify thedegree of harassment it found respondent to have committed.