Opinion
2012-03-20
In the Matter of Mary NUNZIATA, respondent, v. Todd J. NUNZIATA, appellant.
Blumberg, Cherkoss, Fitz Gibbons & Blumberg, LLP, Amityville, N.Y. (Stacy A. Wardle of counsel), for appellant. Amy L. Colvin, Huntington, N.Y., attorney for the children.
Blumberg, Cherkoss, Fitz Gibbons & Blumberg, LLP, Amityville, N.Y. (Stacy A. Wardle of counsel), for appellant. Amy L. Colvin, Huntington, N.Y., attorney for the children.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, Todd J. Nunziata appeals from an order of protection of the Family Court, Nassau County (Stack, J.H.O.), dated August 4, 2011, which, upon a finding, made after a hearing, that he had committed a family offense, directed him, inter alia, to refrain from communicating with the petitioner, except with regard to matters concerning the health, welfare, parenting, and education of the parties' children, and to refrain from committing any acts of assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, or any criminal offense against the parties' children.
ORDERED that the order of protection is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.
A family offense must be established by a “fair preponderance of the evidence” (Family Ct. Act § 832; see Matter of Drury v. Drury, 90 A.D.3d 754, 934 N.Y.S.2d 337; Matter of Pearlman v. Pearlman, 78 A.D.3d 711, 712, 911 N.Y.S.2d 87; Matter of Thomas v. Thomas, 72 A.D.3d 834, 835, 898 N.Y.S.2d 495; Matter of Hunt v. Hunt, 51 A.D.3d 924, 925, 858 N.Y.S.2d 724; Matter of Patton v. Torres, 38 A.D.3d 667, 668, 832 N.Y.S.2d 599). “Only competent, material and relevant evidence may be admitted in a fact-finding hearing” (Family Ct. Act § 834; see Matter of Daoud v. Daoud, 92 A.D.3d 878, 940 N.Y.S.2d 869 [2d Dept. 2012]; Matter of Belinda YY. v. Lee ZZ., 74 A.D.3d 1394, 1395, 903 N.Y.S.2d 568).
Here, the petitioner failed to establish by a fair preponderance of the evidence that the appellant committed any of the family offenses charged in the petition ( see Matter of Foxworth v. DeJesus, 74 A.D.3d 1064, 903 N.Y.S.2d 114; Matter of Patton v. Torres, 38 A.D.3d at 668, 832 N.Y.S.2d 599). Accordingly, the order of protection must be reversed, the petition denied, and the proceeding dismissed.