| Matter of Ungar v Ungar |
| 2011 NY Slip Op 00522 [80 AD3d 771] |
| January 25, 2011 |
| Appellate Division, Second Department |
| In the Matter of Tzi Ungar, Respondent, v Martin Ungar,Appellant. |
—[*1] Edward E. Caesar, Brooklyn, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the father appeals froman order of the Family Court, Kings County (Feldman, J.H.O.), dated February 9, 2010, which,after a hearing, upon a finding that he had committed acts constituting the family offense ofharassment, in effect, granted his son's petition for an order of protection.
Ordered that the order is reversed, on the law, without costs or disbursements, the petition isdenied, and the proceeding is dismissed.
The petitioner (hereinafter the son) filed a family offense petition dated September 19, 2008,against the appellant (hereinafter the father). The petition alleged harassment and that the mostrecent incident had occurred on September 11, 2008. The Family Court issued a temporary orderof protection and thereafter denied the father's motion to dismiss the petition. On February 9,2010, a fact-finding hearing was held and the Family Court heard testimony from both the sonand the father. The Family Court granted the petition and issued an order of protection againstthe father, based, in part, upon a postpetition incident purportedly occurring in October 2008.
As the son specifically acknowledged that the petition had not been amended, the FamilyCourt improperly issued the order of protection based, in part, upon allegations of acts thatoccurred in October 2008 (see Matter ofCzop v Czop, 21 AD3d 958, 959 [2005]; Matter of Cavanaugh v Madden, 298AD2d 390 [2002]; Matter of Whittemore v Lloyd, 266 AD2d 305 [1999]).
Considering the other allegations set forth in the petition, the testimony proffered at thehearing before the Family Court failed to establish, by a preponderance of the evidence, thenecessary elements of the offenses of harassment in the first degree or harassment in the seconddegree (see Family Ct Act § 812 [1]; § 832; Matter of Hasbrouck v Hasbrouck, 59AD3d 621 [2009]; Matter of EbonyJ. v Clarence D., 46 AD3d 309 [2007]; Matter of Garland v Garland, 3 AD3d 496 [2004]; Matter of London v Blazer, 2 AD3d860, 861 [2003]; Matter of Cavanaugh v Madden, 298 AD2d at 392). Since therecord does not support the Family Court's determination that the father committed familyoffenses warranting the issuance of the order of protection, the order of protection must bereversed, the petition denied, and the proceeding dismissed (see Family Ct Act §841). Dillon, J.P., Balkin, Belen and Austin, JJ., concur.