Dayan v. Dayan

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Kings County (Sunshine, J.), dated April 23, 2013, which, after a hearing, granted the plaintiff's motion for an order of protection.

ORDERED that the order is affirmed, without costs or disbursements.

We agree with the defendant that his appeal from the order at issue, which granted the plaintiff's motion for an order of protection based upon the finding, after a hearing, that he had committed the family offenses of disorderly conduct and harassment in the second degree, has not been rendered academic by reason of the expiration of a contemporaneously issued order of protection ( see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2015] ).

Furthermore, the defendant correctly contends that the Supreme Court erred in concluding that he committed the family offense of disorderly conduct, as the testimony credited by the court was insufficient to establish, by a preponderance of the evidence, that his conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or harm ( seePenal Law § 240.20; People v. Baker, 20 N.Y.3d 354, 359, 960 N.Y.S.2d 704, 984 N.E.2d 902; Matter of Shiffman v. Handler, 115 A.D.3d 753, 753–754, 981 N.Y.S.2d 790; Matter of Martinez v. Aviles, 112 A.D.3d 719, 976 N.Y.S.2d 393; Matter of Cassie v. Cassie, 109 A.D.3d 337, 342, 969 N.Y.S.2d 537).

However, the Supreme Court properly concluded that the plaintiff proved by a preponderance of the evidence that the defendant committed the family offense of harassment in the second degree, and thereupon properly granted the motion for an order of protection ( seePenal Law § 240.26; Matter of Monos v. Monos, 123 A.D.3d 931, 999 N.Y.S.2d 131; Matter of Martinez v. Aviles, 112 A.D.3d at 720, 976 N.Y.S.2d 393; Matter of Hodiantov v. Aronov, 110 A.D.3d 881, 882, 973 N.Y.S.2d 703; see also Matter of Konstantine v. Konstantine, 107 A.D.3d 994, 994–995, 968 N.Y.S.2d 166).