| Barbara E. v John E. |
| 2007 NY Slip Op 07534 [44 AD3d 426] |
| October 11, 2007 |
| Appellate Division, First Department |
| Barbara E., Appellant, v John E.,Respondent. |
—[*1] No appearance or brief submitted on behalf of respondent.
Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about January30, 2007 under Docket No. O-01015/07, which, after a fact-finding hearing, granted a two-yearorder of protection in favor of petitioner and against respondent and denied petitioner'sapplication that respondent be excluded from the family home, unanimously modified, on the lawand the facts, to the extent of directing that respondent be excluded from the family home,otherwise affirmed, without costs. Order, same court and Justice, entered on or about January 30,2007 under Docket No. O-01881/07, which, following a fact-finding hearing, granted a two-yearorder of protection in favor of respondent and against appellant, unanimously affirmed, withoutcosts.
Family Court found that respondent committed family offenses against appellant that wouldconstitute assault in the third degree, harassment in the second degree, and attempted assault inthe third degree. Appellant's credible testimony established that respondent knocked herunconscious on one occasion resulting in a two-inch bump on her head, he verbally abused heron a daily basis, hit her, and broke household items or threw things at her whenever he wasangry. Appellant, who was wheelchair bound and undergoing treatment for cancer, wasparticularly vulnerable to respondent's verbal and physical abuse, and an order of protectiondirecting respondent's exclusion from the home was necessary to provide meaningful protectionfor appellant and to eradicate the root of the family disturbance (see Matter of Charles v Charles, 21AD3d 487 [2005]; Merola v Merola, 146 AD2d 611 [1989]; Matter ofLeffingwell v Leffingwell, 86 AD2d 929 [1982]).
The order of protection granted in favor of respondent was appropriate in light of the findingthat appellant committed a family offense that would constitute harassment in the second degreebased upon her admission that she slapped respondent (Penal Law § 240.26 [1]).
We have considered appellant's remaining contentions and find them unavailing.Concur—Tom, J.P., Mazzarelli, Friedman, Sullivan and Nardelli, JJ.