| Matter of Benincasa v Benincasa |
| 2009 NY Slip Op 06427 [65 AD3d 1040] |
| September 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of Philip Benincasa, Jr., Appellant, v DeanaM. Benincasa, Respondent. (Proceeding No. 1.) In the Matter of Deana M. Benincasa,Respondent, v Philip Benincasa, Jr., Appellant. (Proceeding No. 2.) |
—[*1] Kalman D. Rothman, Nanuet, N.Y., for respondent. Christopher Widholm, New City, N.Y., attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, and a relatedproceeding pursuant to Family Court Act article 6, Philip Benincasa, Jr., appeals (1) from anorder of protection of the Family Court, Rockland County (Warren, J.), dated May 1, 2008,which, after a hearing, upon, in effect, finding that he committed the family offense ofharassment in the second degree and granting the family offense petition, is in favor of Deana M.Benincasa and against him for a period of two years, and (2), as limited by his brief, from somuch of an order of the same court, also dated May 1, 2008, as, after a hearing, denied thatbranch of his petition which was to modify certain visitation provisions contained in an order ofthe same court dated September 20, 2007.
Ordered that the order of protection is reversed, on the law, without costs or disbursements,the family offense petition is denied, and that proceeding is dismissed; and it is further,
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
Since the record does not support the Family Court's determination that the appellantcommitted the family offense of harassment in the second degree, the order of protection must bereversed, the family offense petition denied, and that proceeding dismissed (see PenalLaw § 240.26 [3]; Family Ct Act § 812 [1]; §§ 832, 841; Matter of Hasbrouck v Hasbrouck, 59AD3d 621 [2009]; Matter of Pattonv Torres, 38 AD3d 667, 668 [2007]; Matter of Cavanaugh v Madden, 298AD2d 390, 391-392 [2002]).[*2]
The appellant, however, failed to demonstrate that achange of the location where he picks up and drops off the parties' child for visitation would bein the best interests of the child (see Matter of Wilson v McGlinchey, 2 NY3d 375,380-381 [2004]; Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]). Accordingly,the Family Court properly denied that branch of his petition which was to modify certainvisitation provisions of the order dated September 20, 2007, regarding the location of thevisitation exchange. Mastro, J.P., Santucci, Eng and Lott, JJ., concur.