| Matter of Sperling v Sperling |
| 2012 NY Slip Op 05178 [96 AD3d 1067] |
| June 27, 2012 |
| Appellate Division, Second Department |
| In the Matter of David Sperling, Respondent, v GladisSperling, Appellant. |
—[*1]
In a family offense proceeding pursuant to Family Court Act article 8, Gladis Sperlingappeals from an order of protection of the Family Court, Suffolk County (Burke, Ct. Atty. Ref.),dated June 6, 2011, which, after a hearing, and, in effect, upon a finding that she had committedthe family offense of harassment in the second degree, directed her, inter alia, to stay away fromthe petitioner until and including June 6, 2013.
Ordered that the order of protection is affirmed, without costs or disbursements.
The Family Court failed to state on the record the facts which it deemed essential to itsdetermination to grant the petition for an order of protection (see CPLR 4213 [b];Matter of Jose L.I., 46 NY2d 1024, 1025-1026 [1979]; Matter of Drury v Drury, 90 AD3d754, 755 [2011]; Matter of Smith vFalco-Boric, 87 AD3d 1146, 1147 [2011]). However, remittal to the Family Court is notnecessary because the record is sufficient for this Court to conduct an independent review of theevidence (see Matter of Jose L. I., 46 NY2d at 1026; Matter of Drury v Drury, 90AD3d at 755; Matter of Smith v Falco-Boric, 87 AD3d at 1147; Matter of Destiny H. [Valerie B.], 83AD3d 939 [2011]). The evidence adduced at the hearing established, by a preponderance ofthe evidence, that the wife committed the family offense of harassment in the second degree,warranting the issuance of an order of protection (see Family Ct Act §§ 812,832; Penal Law § 240.26 [1]; Matter of Genzen v Genzen, 74 AD3d 1196 [2010]; Barbara E. v John E., 44 AD3d426, 427 [2007]; Matter of JessicaC. v Esteban B., 13 AD3d 183 [2004]).
Moreover, contrary to the wife's contention, under the circumstances of this case, the FamilyCourt's failure to hold a dispositional hearing prior to issuing a two-year order of protection doesnot require reversal (see Matter ofSblendorio v D'Agostino, 60 AD3d 773, 773-774 [2009]; Matter of Hassett v Hassett, 4 AD3d527 [2004]; Matter of Dabbene v Dabbene, 297 AD2d 812 [2002]; Matter ofAnnie C. v Marcellus W., 278 AD2d 177, 177-178 [2000]; Matter of Quintana vQuintana, 237 AD2d 130 [1997]). In addition, upon the exercise of our factual review power,the Family Court's disposition awarding the husband a two-year order of protection was notagainst the weight of the evidence (see Matter of Sblendorio v D'Agostino, 60 AD3d at774; Barbara E. v John E., 44 AD3d at 427). Skelos, J.P., Dickerson, Leventhal andRoman, JJ., concur.