| Matter of Miloslau v Miloslau |
| 2013 NY Slip Op 08084 [112 AD3d 632] |
| December 4, 2013 |
| Appellate Division, Second Department |
| In the Matter of Patrice Miloslau,Respondent, v Michael Miloslau, Appellant. |
—[*1] Del Atwell, East Hampton, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, MichaelMiloslau appeals from an order of protection of the Family Court, Putnam County(Rooney, J.), entered July 18, 2012, which, after a hearing, and upon a finding that hecommitted the family offense of harassment in the second degree, directed him, inter alia,to stay away from Patrice Miloslau and, in effect, the marital residence, until andincluding July 16, 2014.
Ordered that the order of protection is affirmed, without costs or disbursements.
In a family offense proceeding, the petitioner has the burden of establishing theallegations contained in the petition by a "fair preponderance of the evidence" (Family CtAct § 832; see Matter ofTesta v Strickland, 99 AD3d 917 [2012]; Matter of Thomas v Thomas, 72 AD3d 834, 835 [2010]).The determination of whether a family offense was committed is a factual issue to beresolved by the Family Court, and that court's determination regarding the credibility ofwitnesses is entitled to great weight on appeal unless clearly unsupported by the record(see Matter of Kondor vKondor, 109 AD3d 660 [2013]; Matter of Shields v Brown, 107 AD3d 1005, 1006 [2013];Matter of Creighton vWhitmore, 71 AD3d 1141 [2010]). Here, a fair preponderance of the credibleevidence supports the Family Court's determination that the appellant committed thefamily offense of harassment in the second degree (see Penal Law §240.26 [1]; Family Ct Act §§ 812, 832; Matter of Parameswar v Parameswar, 109 AD3d 473, 474[2013]; Matter of Scanziani vHairston, 100 AD3d 1007, 1008 [2012]).
Under the circumstances presented, the Family Court's failure to hold a dispositionalhearing prior to issuing the order of protection does not require reversal (see Matter of Sperling vSperling, 96 AD3d 1067 [2012]; Matter of Sblendorio v D'Agostino, 60 AD3d 773, 773-774[2009]; Matter of Hassett vHassett, 4 AD3d 527 [2004]). In addition, the order of protection, whichdirected the appellant, inter alia, to stay away from the petitioner and, in effect, themarital residence, was reasonably necessary to provide meaningful protection to thepetitioner (see Matter ofMistretta v Mistretta, 85 AD3d 1034, 1035 [2011]; Matter of Charles v Charles,21 AD3d 487, 488 [2005]). Rivera, J.P., Hall, Roman and Miller, JJ., concur.