Opinion
2677
December 24, 2002.
Order, Supreme Court, New York County (Richard Braun, J.), entered November 8, 2001, which, in an action for divorce, after a hearing, issued a temporary order of protection directing that defendant stay away from plaintiff and the marital residence and that his visitation with the parties' children be supervised, and granting plaintiff exclusive use and occupancy of the marital residence, unanimously affirmed, without costs.
Maria Coffinas, for plaintiff-respondent.
Leonard R. Sperber, for defendant-appellant.
Before: TOM, J.P., ANDRIAS, ROSENBERGER, FRIEDMAN, MARLOW, JJ.
Supreme Court properly granted a temporary order of protection upon findings, supported by a preponderance of the evidence adduced at the hearing, that defendant raped plaintiff in their home near where the parties' infant children slept (Domestic Relations Law § 240[a];[3]; § 252[1][c]). No basis exists to disturb the hearing court's credibility findings (see Matter of Louise E. S. v. W. Stephen S., 64 N.Y.2d 946, 947). Plaintiff's claim was corroborated in part by the testimony of two witnesses that plaintiff told them about the rape the day it occurred, the hospital report indicating vaginal trauma and expert testimony that plaintiff's four-day delay in reporting the incident to the police and seeking medical treatment was not unusual due to typical feelings of shame, victimization and helplessness. Nor is there merit to defendant's claim that the hearing was not sufficiently plenary on the custody and visitation issues. Plaintiff's application sought a change in visitation, not custody. This Court notes that plaintiff had recently been awarded temporary custody of the children based on her motion papers which provided defendant with adequate notice that she was seeking protection for the children as well as for herself. Moreover, defendant was alerted during the hearing on that motion that the court was considering supervised visitation. Indeed, plaintiff's credited testimony that defendant raped her near where the children were sleeping provided more than a sufficient basis for the direction that defendant's visitation be supervised (see Domestic Relations Law § 240[a]). We have considered defendant's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.