Matter of Franklin R. C. v. Yoeli M. A. ( 2018 )

Matter of Franklin R. C. v Yoeli M. A. (2018 NY Slip Op 07043)

Matter of Franklin R. C. v Yoeli M. A.

2018 NY Slip Op 07043

Decided on October 23, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2018
Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.

7408

[*1]In re Franklin R. C., Petitioner-Appellant,

v

Yoeli M. A., Respondent-Respondent.

Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.

Kenneth M. Tuccillo, Hastings on Hudson, for respondent.

Order, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about December 1, 2016, which, to the extent appealed from as limited by the briefs, after a fact-finding hearing in a proceeding brought pursuant to Article 8 of the Family Court Act, dismissed the petition seeking an order of protection against respondent for failure to establish a prima facie case, unanimously affirmed, without costs.

Viewing petitioner's testimony in a light most favorable to him, and accepting that testimony as true, we conclude that the testimony failed to establish a prima facie case that respondent's actions constituted the family offense of harassment in the second degree (see Matter of Fatima V. v Ramon V., 100 AD3d 509 [1st Dept 2012]. Petitioner also failed to establish that respondent's actions during the August 28, 2016 incident constituted the family offense of harassment in the second degree under Penal Law § 240.26(2), because his testimony established that the incident occurred in the privacy of their own home.

Respondent's actions during the August 2016 incident could not support a finding that she had committed a family offense because the petition contained no facts regarding that incident (see Matter of Kim Yvette W. v Leola Patricia W., 140 AD3d 495 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2018

CLERK