| Matter of Ovsanik v Ovsanik |
| 2011 NY Slip Op 08021 [89 AD3d 1451] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Diana M. Ovsanik, Respondent, v Ronald P. Ovsanik,Appellant. |
—[*1] Legal Assistance of Western New York, Inc./southern Tier Legal Services, Bath (David B. Pels ofcounsel), for petitioner-respondent.
Appeal from an order of the Family Court, Steuben County (Marianne Furfure, A.J.), datedFebruary 14, 2011 in a proceeding pursuant to Family Court Act article 8. The order, among otherthings, directed respondent to stay away from petitioner.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, the petition is dismissed, and the order of protection is vacated.
Memorandum: In this proceeding pursuant to Family Court Act article 8, respondent contends thatFamily Court erred in determining that he committed against petitioner the family offense of stalking inthe fourth degree (Penal Law § 120.45 [2]). We agree. Petitioner failed to meet her burden ofproving by a preponderance of the evidence that respondent committed acts constituting that familyoffense (see Family Ct Act §§ 812, 832; see generally Matter of Tammy J.H. v John W.H., 42 AD3d 974[2007]). The record establishes that the parties were married in 1987 and that, on at least twooccasions prior to the events leading up to the instant petition, the parties separated and thenreconciled. In July 2009, petitioner left the marital home and began staying at a motel. BetweenOctober 2009 and September 2010, respondent visited petitioner at the motel on a daily basis, and it isundisputed that petitioner consented to those visits. In September 2010, however, petitioner informedrespondent that she no longer wanted to be married to him and that he should no longer visit her. In anattempt to reconcile with petitioner, respondent left four handwritten letters and a store-bought card forher over a period of approximately one month. During that same period of time, respondent knockedon the door of petitioner's motel room at approximately 2 a.m. at least once or twice. When respondentknocked on her door, petitioner ignored him, and respondent left after a few minutes. Becausepetitioner worked overnight shifts, it was not unusual for her to be awake at 2 a.m., and respondentpreviously had visited petitioner during the early morning hours before September 2010.
In light of the foregoing, the evidence is insufficient to establish that respondent acted with "nolegitimate purpose" within the meaning of the stalking statute (Penal Law § 120.45). "[T]hephrase 'no legitimate purpose' means the absence of a reason or justification to engage someone, otherthan to hound, frighten, intimidate or threaten" (People v Stuart, 100 NY2d 412, [*2]428 [2003]). Here, the letters and the card were sent with the legitimatepurpose of attempting to reconcile with petitioner (see Di Donna v Di Donna, 72 Misc 2d 231,233 [1972]), a purpose that was not unreasonable based upon, inter alia, the parties' lengthy marriageand history of separation and reconciliation. The evidence is also insufficient to establish that respondentknew or reasonably should have known that his conduct caused "material harm to [petitioner's] mentalor emotional health" (§ 120.45 [2]). Notably, there is nothing on the face of the letters or thecard that is improper or threatening (cf.Matter of Julie G. v Yu-Jen G., 81 AD3d 1079, 1082 [2011]; Matter of Amy SS. v John SS., 68 AD3d1262, 1263 [2009], lv denied 14 NY3d 704 [2010]). Petitioner's testimony thatrespondent was physically violent during the marriage does not tend to establish that respondent'sconduct in 2010 constituted stalking. Indeed, the only incident of violence that was described in anyparticularity occurred in the early 1990s. Although there is no statute of limitations for family offenses,and acts not "relatively contemporaneous with the date of the petition" are entitled to consideration(Family Ct Act § 812 [1]; see Jose M.v Tatianna T., 30 Misc 3d 948, 949-950 [2011]), petitioner's remote allegations of physicalviolence do not establish "a cognizable pattern of behavior" on respondent's part so as to render hisbehavior devoid of any legitimate purpose (Matter of Opray v Fitzharris, 84 AD3d 1092, 1093 [2011]).
We therefore reverse the order, dismiss the petition and vacate the order of protection (see generally Matter of Kalifa K., 37 AD3d1180 [2007]). Present—Peradotto, J.P., Carni, Lindley, Sconiers and Green, JJ.