| Matter of Filipowski v Sullivan-Tirelli |
| 2016 NY Slip Op 04053 [139 AD3d 1063] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Tab Filipowski,Respondent, v Maria Sullivan-Tirelli, Appellant. |
Michele Marte-Indzonka, Newburgh, NY, for appellant.
Appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.),entered April 28, 2015. The order, after a hearing, found that the appellant committed thefamily offenses of harassment in first degree and harassment in the second degree, anddirected the appellant to observe the conditions of an order of protection dated April 8,2015, which, inter alia, directed her to stay away from the petitioner for a period of twoyears.
Ordered that the order entered April 28, 2015, is modified, on the facts, by deletingthe provision thereof finding that the appellant committed the family offense ofharassment in the first degree; as so modified, the order entered April 28, 2015, isaffirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding against the appellantpursuant to Family Court Act article 8. After a hearing, the Family Court found that theappellant committed the family offenses of harassment in the first degree and harassmentin the second degree and issued an order of protection, inter alia, directing the appellantto stay away from the petitioner for a period of two years.
Contrary to the appellant's contention, the petitioner established that the parties werein an "intimate relationship" over a course of three years prior to the events in question,and therefore, he had standing to commence a family offense proceeding against her(Family Ct Act § 812 [1] [e]; see Matter of Winston v Edwards-Clarke, 127 AD3d 771,773 [2015]; cf. Matter ofCambre v Kirton, 130 AD3d 926, 927 [2015]).
While the petitioner established, by a preponderance of the evidence, that theappellant committed the family offense of harassment in the second degree (seePenal Law § 240.26; Matter of Kappel v Kappel, 234 AD2d 872,873 [1996]; People v Price, 178 Misc 2d 778 [Crim Ct, NY County 1998]), theevidence failed to establish that the appellant's conduct put the petitioner "in reasonablefear of physical injury" (Penal Law § 240.25). Accordingly, we exercise ourfactual review power to vacate the finding of harassment in the first degree (see Matter of Tyrone T. vKatherine M., 78 AD3d 545 [2010]; People v Montague, 39 Misc 3d151[A], 2013 NY Slip Op 50982[U] [App Term, 2d Dept, 9th & 10th Jud Dists2013]; cf. People vHenderson, 12 Misc 3d 60, 61 [App Term, 1st Dept 2006]).
Taken as a whole, the record reveals that the hearing was conducted in a fair and[*2]impartial manner, and that the determination was notthe result of any alleged bias on the part of the Family Court (see Matter of Harris v Kaplin,102 AD3d 692, 693 [2013]; see also Roundtree v Singh, 143 AD2d 995, 996[1988]).
Giving due consideration to the circumstances of this case, there is no basis todisturb the order of protection (see Family Ct Act § 842; Matter of Lang v Dolphy, 128AD3d 700 [2015]). Chambers, J.P., Cohen, Duffy and Connolly, JJ., concur.