Ryan v. Ryan , 346 N.Y.S.2d 105 ( 1973 )

In a family offense proceeding (Family Ct. Act, art. 8) in which an order of protection had been granted by the Family Court, Westchester County, on July 12, 1972, in favor of petitioner against her son, the latter appeals from an order of the same court, dated March 2, 1973 and made after a court appearance by the parties, which committed him to the Westchester County Penitentiary for a term of 90 days for failure to obey the order of protection. Order reversed, on the law and the facts, without costs and proceeding remitted to the Family Court, Westchester County, for a hearing and further proceedings not inconsistent herewith. In the proceeding for violation of the protection order, no proof was taken and appellant was never advised of his right to be heard and to present witnesses. Therefore, the minimal requirements of due process were not complied with (cf. Mutter of Emerick v. Emerick, 24 A D 2d 872). Consequently, the determination that appellant had willfully failed to obey the order of protection was not based upon the requisite quantum of proof (Family Ct. Act, § 846).' Munder, Acting P. J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.