| Matter of Miriam M. v Warren M. |
| 2008 NY Slip Op 04769 [51 AD3d 581] |
| May 29, 2008 |
| Appellate Division, First Department |
| In the Matter of Miriam M., Appellant, v Warren M.,Respondent. |
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Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about June 25,2007, which, upon granting petitioner a two-year order of protection against respondent, declinedto include in the conditions of the order that respondent stay away from petitioner's domesticpartner (Ms. Diaz) and declined to make a finding of aggravating circumstances, unanimouslymodified, on the law, to the extent of adding a condition to the order of protection directingrespondent to stay away from Ms. Diaz and her place of employment, and otherwise affirmed,without costs.
Following a fact-finding hearing, respondent was found to have committed the familyoffenses of disorderly conduct and harassment in the second degree against petitioner, his sister.It was established that respondent screamed and threatened petitioner while making violentmotions with his hands in close proximity to petitioner, and then twice struck Ms. Diaz in theface. In declining to include in the conditions of the order of protection that respondent stay awayfrom Ms. Diaz, the court erred in concluding that it was constrained in its ability to issue suchrelief. Indeed, the Family Court has the authority to impose reasonable conditions when they are"likely to be helpful in eradicating the root of family disturbance" (Matter of Leffingwell vLeffingwell, 86 AD2d 929, 930 [1982]), and Family Court Act § 842 (a) provides thatthe Family Court may order respondent to stay away from "any . . . specificlocation," which under the circumstances should include Ms. Diaz and her place of employment,as it would go toward achieving the purpose of fully protecting petitioner (see Family CtAct § 842 [j]). However, contrary to petitioner's contention, respondent could not bedirected to refrain from committing family offenses against Ms. Diaz since a family offense isdefined as one between spouses or former spouses, between parent and child, or betweenmembers of the same family or household, which does not include domestic partners (seeFamily Ct Act § 812 [1]; § 842 [c]). Nor could the court have orderedrespondent to refrain from communicating with Ms. Diaz (see 22 NYCRR 205.74 [c]).
There exists no basis upon which to disturb the court's refusal to make a finding ofaggravating circumstances. As noted, Ms. Diaz does not fall within the statutory definition of"member[ ] of the same family or household" (see Family Ct Act § 812 [1]), andaccordingly, respondent's conduct toward her cannot constitute an "exposure of any family orhousehold member to physical injury by the respondent and like incidents, behaviors andoccurrences which to the court constitute an immediate and ongoing danger to the petitioner, orany member [*2]of the petitioner's family or household" (FamilyCt Act § 827 [a] [vii]). Concur—Lippman, P.J., Tom, Gonzalez, Buckley andRenwick, JJ.