| Matter of Nunziata v Nunziata |
| 2012 NY Slip Op 02105 [93 AD3d 800] |
| March 20, 2012 |
| Appellate Division, Second Department |
| In the Matter of Mary Nunziata, Respondent, v Todd J.Nunziata, Appellant. |
—[*1] Amy L. Colvin, Huntington, N.Y., attorney for the children.
In a family offense proceeding pursuant to Family Court Act article 8, Todd J. Nunziataappeals from an order of protection of the Family Court, Nassau County (Stack, J.H.O.), datedAugust 4, 2011, which, upon a finding, made after a hearing, that he had committed a familyoffense, directed him, inter alia, to refrain from communicating with the petitioner, except withregard to matters concerning the health, welfare, parenting, and education of the parties' children,and to refrain from committing any acts of assault, stalking, harassment, aggravated harassment,menacing, reckless endangerment, or any criminal offense against the parties' children.
Ordered that the order of protection is reversed, on the law, without costs or disbursements,the petition is denied, and the proceeding is dismissed.
A family offense must be established by a "fair preponderance of the evidence" (Family CtAct § 832; see Matter of Drury vDrury, 90 AD3d 754 [2011]; Matter of Pearlman v Pearlman, 78 AD3d 711, 712 [2010]; Matter of Thomas v Thomas, 72 AD3d834, 835 [2010]; Matter of Hunt vHunt, 51 AD3d 924, 925 [2008]; Matter of Patton v Torres, 38 AD3d 667, 668 [2007]). "Onlycompetent, material and relevant evidence may be admitted in a fact-finding hearing" (Family CtAct § 834; see Matter of Daoud vDaoud, 92 AD3d 878 [2d Dept 2012]; Matter of Belinda YY. v Lee ZZ., 74 AD3d 1394, 1395 [2010]).
Here, the petitioner failed to establish by a fair preponderance of the evidence that theappellant committed any of the family offenses charged in the petition (see Matter of Foxworth v DeJesus, 74AD3d 1064 [2010]; Matter of Patton v Torres, 38 AD3d at 668). Accordingly, theorder of protection must be reversed, the petition denied, and the proceeding dismissed. Rivera,J.P., Leventhal, Roman and Cohen, JJ., concur.