Eames v. Eames , 538 N.Y.S.2d 1000 ( 1989 )

— In a proceeding pursuant to Family Court Act article 8 for temporary and permanent orders of protection, the petitioner appeals from an order of the Fámily Court, Suffolk County (Freundlich, J.), dated January 13, 1989, which dismissed the petition.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to a different Judge of the Family Court, Suffolk County, for a fact-finding hearing, to be held within five days of the date of this decision and order, on the issues raised by the petition. The injunction against the respondent contained in the order to show cause signed by Justice Mangano on January 17, 1989, and continued in the decision and order on motion of this court dated January 25, 1989, shall remain in effect until the entry of the order determining this proceeding.

The petitioner applied for an ex parte temporary order of protection as well as a permanent order before the Family Court pursuant to Family Court Act §§ 812, 828 and 842. The court questioned the petitioner and another witness on the record and determined that no family offense had occurred (see, Family Ct Act §832). In holding a hearing the court should not have abruptly halted the witnesses’ testimony and refused to allow the petitioner’s attorney to question either witness. The petitioner should be given an opportunity to prove her allegations of family offenses committed against her (see, Family Ct Act §§ 821, 842). For this reason, we remit the matter to the Family Court for a proper fact-finding hearing (see, Family Ct Act § 832). Under the circumstances, we deem it appropriate that the hearing be held before a different Judge of the Family Court, and direct that the hearing be held within five days of the date of this decision and order. Mangano, J. P., Brown, Rubin and Kooper, JJ., concur.