| Matter of Riordan v Riordan |
| 2015 NY Slip Op 03847 [128 AD3d 704] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Gloria Riordan,Respondent, v Steven Riordan, Appellant. |
Tennille M. Tatum-Evans, New York, N.Y., for appellant.
Law Office of Terrence J. Worms, P.C., Flushing, N.Y., for respondent.
Appeal from an order of protection of the Family Court, Queens County (DennisLebwohl, J.), entered June 2, 2014. The order of protection, after a hearing, directedSteven Riordan, inter alia, to stay away from Gloria Riordan.
Ordered that the order of protection is affirmed, without costs or disbursements.
The petitioner commenced the instant family offense proceeding pursuant to FamilyCourt Act article 8 against the appellant, her adult son. After a hearing, the Family Courtfound that the appellant committed the family offenses of assault in the third degree,menacing in the second degree, reckless endangerment in the second degree, andcriminal mischief in the fourth degree. Based upon those findings, the Family Courtissued an order of protection against the appellant, requiring him to stay away from thepetitioner and to observe other stated conditions.
"In a family offense proceeding, the petitioner has the burden of establishing, by a'fair preponderance of the evidence,' that the charged conduct was committed as allegedin the petition" (Matter ofCassie v Cassie, 109 AD3d 337, 340 [2013], quoting Family Ct Act§ 832; see alsoMatter of Musheyev v Musheyev, 126 AD3d 800 [2015]).
Here, contrary to the Family Court's finding, the petitioner failed to establish, by afair preponderance of the evidence, that the appellant committed the family offense ofmenacing in the second degree, as there was no evidence that the appellant engaged in a"course of conduct" or "repeatedly commit[ted] acts," which placed or attempted to placethe petitioner "in reasonable fear of physical injury" (Penal Law § 120.14[2]). Further, the evidence was insufficient to establish that the appellant committed thefamily offense of assault in the third degree, since there was no evidence that theappellant caused physical injury to the petitioner (see Penal Law§ 120.00 [1], [2]; Penal Law § 10.00 [9]; Matter of Spooner-Boyke vCharles, 126 AD3d 907 [2015]; Matter of Campbell v Campbell, 123 AD3d 1123 [2014]),or committed the family offense of reckless endangerment in the second degree, as therewas no evidence that the appellant engaged in conduct which created "a substantial riskof serious physical injury" to the petitioner (Penal Law § 120.20; seeMatter of Campbell v Campbell, 123 AD3d at 1125).
[*2] However, as the Family Court properly concluded, thepetitioner proved, by a preponderance of the evidence, that the appellant committed thefamily offense of criminal mischief in the fourth degree (see Penal Law§ 145.00 [1]; Matter of Abatantuno v Abatantuno, 119 AD3d 779[2014]). Under these circumstances, we conclude that the terms and duration of the orderof protection were appropriate to address that conduct (see Matter of Campbell vCampbell, 123 AD3d at 1125; Matter of Monos v Monos, 123 AD3d 931, 932 [2014]).Accordingly, the Family Court properly issued the order of protection. Mastro, J.P.,Skelos, Dickerson and LaSalle, JJ., concur.