| Matter of Marquardt v Marquardt |
| 2012 NY Slip Op 03003 [94 AD3d 1436] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Ursula M. Marquardt, Respondent, v Paul D.Marquardt, Appellant. |
—[*1] Charles J. Greenberg, Buffalo, for petitioner-respondent.
Appeal from an order of the Family Court, Genesee County (Eric R. Adams, J.), enteredMarch 14, 2011 in a proceeding pursuant to Family Court Act article 8. The order, inter alia,found that respondent had committed acts constituting the family offense of disorderly conduct.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 8, respondent appealsfrom an order that, inter alia, determined that he committed the family offense of disorderlyconduct (Penal Law § 240.20) against petitioner on two occasions. At the beginning of thefact-finding hearing, respondent requested that Family Court limit the proof to events occurringwithin two years prior to the filing of the petition. Both instances of disorderly conduct fallwithin that time period. Respondent therefore waived his contention that he was denied dueprocess based on the court's consideration of alleged instances of disorderly conduct thatoccurred during that time period and his further contention that the proceeding is barred bylaches or the statute of limitations (seegenerally Lahren v Boehmer Transp. Corp., 49 AD3d 1186, 1187 [2008]; Cerilli vKezis, 306 AD2d 430 [2003]).
Contrary to respondent's contention, we conclude that petitioner established by apreponderance of the evidence that respondent engaged in acts constituting disorderly conduct(see Matter of Hagopian vHagopian, 66 AD3d 1021, 1022 [2009]). The court's "assessment of the credibility ofthe witnesses is entitled to great weight, and the court was entitled to credit the testimony of[petitioner] over that of [respondent]" (Matter of Scroger v Scroger, 68 AD3d 1777, 1778 [2009], lvdenied 14 NY3d 705 [2010]). Present—Centra, J.P., Peradotto, Lindley, Sconiers andMartoche, JJ.