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FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reversing Family Court, found that the charged family offenses of aggravated harassment and assault third were not supported by proof of physical injury:

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… [T]he petitioner failed to establish by a fair preponderance of the evidence that the appellant committed the family offenses of aggravated harassment and assault in the third degree. Both of those family offenses require proof of physical injury, which is defined as “impairment of physical condition or substantial pain” … . Contrary to the Family Court’s determination, the evidence presented at the fact-finding hearing failed to adequately demonstrate that the petitioner suffered a physical injury as a result of the conduct alleged in the petition … . Since the court’s factual determinations were not supported by the record, we vacate the finding that the appellant committed the family offenses of aggravated harassment and assault in the third degree … .. Inasmuch as the petitioner has not raised any alternative grounds for affirmance of the order of protection … , under the circumstances, we reverse the order of protection, deny the family offense petition, and dismiss the proceeding … . Matter of Stanislaus v Stanislaus, 2017 NY Slip Op 08274, Second Dept 11-22-17

 

FAMILY LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/AGGRAVATED HARASSMENT  (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/ASSAULT THIRD DEGREE  (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/FAMILY OFFENSES (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))

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FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT).
THE BUSINESS RECORDS REFERRED TO IN THE PLAINTIFF’S AFFIDAVIT DEMONSTRATING DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT). ​
EMAILS INADVERTENTLY PROVIDED TO PLAINTIFF WERE NOT PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, SUPREME COURT SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER (SECOND DEPT).
THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT).
THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT).
PLAINTIFF DID NOT PROVE DEFENDANT RECEIVED AND RETAINED THE INVOICES; SUMMARY JUDGMENT ON THE ACCOUNT STATED CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

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STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER... EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE...