| Matter of Hagopian v Hagopian |
| 2009 NY Slip Op 07843 [66 AD3d 1021] |
| October 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Vartkes Hagopian, Appellant, v KathleenHagopian, Respondent. |
—[*1] Michael N. Klar, Carle Place, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the husband appealsfrom an order of the Family Court, Suffolk County (Tarantino, Jr., J.), dated November 13, 2008,which, after a fact-finding hearing, in effect, granted the wife's motion, made at the close of thehusband's testimony, to dismiss the petition for failure to establish a prima facie case.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the wife's motion which were to dismiss those portions of the petition allegingthe commission of the family offenses of harassment in the second degree and disorderlyconduct, and substituting therefor a provision denying those branches of the motion; as somodified, the order is affirmed, with costs, and the matter is remitted to the Family Court,Suffolk County, for the issuance of an appropriate temporary order of protection and a newfact-finding hearing and determination on those portions of the petition.
The husband, age 74, and the wife, age 66, have been married since 1989 and reside togetherin Holbrook, New York. Prior to the commencement of the instant proceeding, the wife hadcommenced an action for a divorce. On June 30, 2008, the husband filed a family offensepetition seeking an order of protection against the wife in Family Court, alleging that she hadcommitted acts that constituted harassment in the first degree, harassment in the second degree,aggravated harassment in the second degree, disorderly conduct, and reckless endangerment.
At the ensuing hearing, the husband testified that over the course of four days following hisreturn home from hip replacement surgery, the wife verbally abused him with profanities andscreamed at him in front of his son, demanded that he move out, threw his medication on thefloor where he could not reach it, removed and hid his medical equipment, and slammed doorsand screamed in his face while he was sleeping. The Family Court granted the wife's motion,made at the close of the husband's testimony, to dismiss the petition for failure to establish aprima facie case. We modify.
The Family Court properly granted those branches of the wife's motion which were to [*2]dismiss those portions of the petition alleging the commission ofthe family offenses of harassment in the first degree, aggravated harassment in the seconddegree, and reckless endangerment in the second degree (see Penal Law §§240.25, 240.30, 120.20; Matter of Shaniqua W., 262 AD2d 496 [1999]). However, thehusband's testimony was sufficient to establish a prima facie case of harassment in the seconddegree (see Penal Law § 240.26; Matter of Robbins v Robbins, 48 AD3d822 [2008]; Matter of Rankoth v Sloan, 44 AD3d 863, 864 [2007]), as well as disorderlyconduct (see Penal Law § 240.20; Matter of Nusbaum v Nusbaum, 59AD3d 725 [2009]; Matter of Bhanote v Bhanote, 22 AD3d 490 [2005]). Accordingly, weremit the matter to the Family Court, Suffolk County, for the issuance of an appropriatetemporary order of protection and a new fact-finding hearing and determination on thoseportions of the petition (see Family Ct Act § 832; Matter of Bhanote vBhanote, 22 AD3d at 490). Skelos, J.P., Covello, Santucci and Balkin, JJ., concur.