| Matter of Opray v Fitzharris |
| 2011 NY Slip Op 04255 [84 AD3d 1092] |
| May 17, 2011 |
| Appellate Division, Second Department |
| In the Matter of Catherine Opray, Appellant, v PatrickFitzharris, Respondent. |
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In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals froman order of disposition of the Family Court, Suffolk County (Lecktrecker, Ct. Atty. Ref.), datedMay 17, 2010, which, upon granting those branches of the husband's motion to dismiss thepetition with regard to incidents alleged to have occurred on January 6, 2010, and April 6, 2010,based upon her failure to establish a prima facie case that the husband had committed a familyoffense within the meaning of Family Court Act § 812, dismissed the petition, and vacateda temporary order of protection against the husband.
Ordered that the order of disposition is modified, on the law, by deleting the provisionsthereof dismissing that branch of the petition which was based on the allegation that the husbandhad committed a family offense within the meaning of Family Court Act § 812 based onaggravated harassment in the second degree on April 6, 2010, and vacating the temporary orderof protection with regard to that allegation; as so modified, the order of disposition is affirmed,without costs or disbursements, that branch of the husband's motion which was to dismiss thepetition for failure to establish a prima facie case as to the incident occurring on April 6, 2010, isdenied, the petition and temporary order of protection are reinstated only as to the allegation ofaggravated harassment in the second degree on April 6, 2010, and the matter is remitted to theFamily Court, Suffolk County, for further proceedings in accordance herewith.
The wife initiated this family offense proceeding on or about April 7, 2010, alleging, amongother things, that the husband committed the family offenses of assault and aggravatedharassment during various incidents occurring in April 2001 and December 2006, as well as onJanuary 6, 2010, April 3, 2010, and April 6, 2010.
The Family Court properly dismissed allegations in the petition regarding incidents alleged tohave occurred in April 2001 and December 2006. Allegations of a family offense are not subjectto the defense of laches or statute of limitations (see Matter of Ashley P., 31 AD3d 767, 769 [2006]; Matter ofNina [*2]K. v Victor K., 195 Misc 2d 726, 727 [2003]). "Theissue in family offense matters is not the age of the threat but the imminence of the danger"(Matter of Nina K. v Victor K., 195 Misc 2d at 727). Here, in addition to the remotenessof the allegations, the Family Court properly determined that they did not bear upon the existenceof an "immediate and ongoing danger" to the wife or children (Swersky v Swersky, 299AD2d 540, 541 [2002] [internal quotation marks omitted]; see Family Ct Act §827). Contrary to the wife's contention, the incidents of April 2001 and December 2006, whenconsidered together with the more recent allegations, did not establish a cognizable pattern ofbehavior on the part of the husband sufficient to make the more remote allegations relevant to thewife's present request for an order of protection.
Likewise, we decline to disturb the Family Court's determination that the wife failed to proveby a fair preponderance of the evidence that the husband committed a family offense on April 3,2010 (see Matter of Luke v Luke,72 AD3d 689 [2010]; Matter ofBarnes v Barnes, 54 AD3d 755, 756 [2008]; Matter of Wilkins v Wilkins, 47 AD3d 823, 824 [2008]; Matter of Hall v Hall, 45 AD3d842, 842-843 [2007]; Family Ct Act § 832).
Nevertheless, the Family Court erred in determining that the wife failed to establish a primafacie case of aggravated harassment with respect to the incident alleged to have occurred on April6, 2010. In determining a motion to dismiss for failure to establish a prima facie case, "theevidence must be accepted as true and given the benefit of every reasonable inference which maybe drawn therefrom . . . The question of credibility is irrelevant, and should not beconsidered" (Matter of Ramroop vRamsagar, 74 AD3d 1208, 1209 [2010] [internal quotation marks omitted]; see Matter of Prezioso v Prezioso, 79AD3d 1043, 1043 [2010]). Here, viewing the wife's testimony in the light most favorable toher, and accepting her testimony as true, the wife failed to establish a prima facie case of assaultin the third degree (see Penal Law § 120.00) or aggravated harassment in thesecond degree (see Penal Law § 240.30) with respect to the incident alleged tohave occurred January 6, 2010. The wife did, however, establish a prima facie case of aggravatedharassment in the second degree based on her testimony that during a telephone conversation onApril 6, 2010, the husband threatened, among other things, to find her and kidnap the children(see Penal Law 240.30 [1] [a]).
Based upon the foregoing, the petition must be reinstated and the matter remitted to theFamily Court, Suffolk County, for a new fact-finding hearing and for a new determination of thepetition thereafter with respect to the allegations regarding the events of April 6, 2010 (seeFamily Ct Act § 841 [d]; § 842).
The wife's remaining contentions are without merit. Rivera, J.P., Skelos, Florio and Austin,JJ., concur.