Matter of Patton v Torres
2007 NY Slip Op 02126 [38 AD3d 667]
March 13, 2007
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 9, 2007

In the Matter of Gabriella Patton, Respondent,
Anibal Torres, Jr., Appellant.

[*1] Del Atwell, East Hampton, N.Y., for appellant.

In a proceeding pursuant to Family Court Act article 8, the father appeals from an order of disposition of the Family Court, Orange County (Bivona, J.), dated October 26, 2005, which, after a hearing, directed the issuance of an order of protection, to remain in effect until July 13, 2007, inter alia, directing the father to refrain from assaulting, stalking, harassing, and menacing the mother.

Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the petition is denied, the proceeding is dismissed, and the order of protection dated July 14, 2005 is vacated.

The allegations in the petition in a family offense proceeding seeking the issuance of an order of protection must be supported by "a fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Dabbene v Dabbene, 297 AD2d 812 [2002]; Matter of Hogan v Hogan, 271 AD2d 533 [2000]). Here, the evidence proffered in support of the petition failed to establish that the father committed the family offense of harassment as charged in the petition (see Penal Law § 240.26 [3]; Family Ct Act § 812; People v Wood, 59 NY2d 811, 812 [1983]; People v Chasserot, 30 NY2d 898, 899 [1972]; Matter of Garland v Garland, 3 AD3d 496 [2004]; Matter of London v Blazer, 2 AD3d 860, 861 [2003]; Matter of Anonymous v Anonymous, 23 AD3d 461 [2005]; Matter of Sawdey-Dacey v Dacey, 236 AD2d 896 [1997]). Crane, J.P., Goldstein, Lifson and Carni, JJ., concur.