PETRIE, PATRICIA v. PETRIE, DONALD ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1110
CAF 11-01925
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
IN THE MATTER OF PATRICIA PETRIE,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
DONALD PETRIE, JR., RESPONDENT-APPELLANT.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT.
Appeal from an order of the Family Court, Yates County (W.
Patrick Falvey, J.), entered August 11, 2011 in a proceeding pursuant
to Family Court Act article 8. The order granted a protective order
to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent husband appeals from an order of
protection entered upon a finding that he committed the family
offenses of harassment in the second degree (Penal Law § 240.26 [1])
and menacing in the third degree (§ 120.15) against petitioner wife.
Initially, we note that the order of protection has expired, and we
thus generally would dismiss the appeal as moot (see Matter of
Kristine Z. v Anthony C., 43 AD3d 1284, 1284-1285, lv denied 10 NY3d
705). Here, however, the husband challenges only Family Court’s
finding that he committed two family offenses and, “ ‘in light of
enduring consequences which may potentially flow from an adjudication
that a party has committed a family offense,’ the appeal from so much
of the order . . . as made that adjudication is not academic” (Matter
of Hunt v Hunt, 51 AD3d 924, 925; see Matter of Samora v Coutsoukis,
292 AD2d 390, 391, lv denied 99 NY2d 506).
Contrary to the husband’s contention, however, we conclude that
the wife established by a preponderance of the evidence that he
engaged in acts constituting harassment in the second degree and
menacing in the third degree (see Matter of Baginski v Rostkowski, 96
AD3d 1051, 1051-1052; see also Matter of Chase-Triou v Triou, 96 AD3d
1699, 1699; Matter of Beck v Butler, 87 AD3d 1410, 1411, lv denied 18
NY3d 801). The court’s “assessment of the credibility of the
witnesses is entitled to great weight, and the court was entitled to
credit the testimony of the wife over that of the husband” (Matter of
-2- 1110
CAF 11-01925
Scroger v Scroger, 68 AD3d 1777, 1778, lv denied 14 NY3d 705).
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court