        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

492
CAF 11-00770
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF URSULA M. MARQUARDT,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PAUL D. MARQUARDT, RESPONDENT-APPELLANT.


BRIAN P. DEGNAN, BATAVIA, FOR RESPONDENT-APPELLANT.

CHARLES J. GREENBERG, BUFFALO, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered March 14, 2011 in a proceeding pursuant to Family
Court Act article 8. The order, inter alia, found that respondent had
committed acts constituting the family offense of disorderly conduct.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 8, respondent appeals from an order that, inter alia,
determined that he committed the family offense of disorderly conduct
(Penal Law § 240.20) against petitioner on two occasions. At the
beginning of the fact-finding hearing, respondent requested that
Family Court limit the proof to events occurring within two years
prior to the filing of the petition. Both instances of disorderly
conduct fall within that time period. Respondent therefore waived his
contention that he was denied due process based on the court’s
consideration of alleged instances of disorderly conduct that occurred
during that time period and his further contention that the proceeding
is barred by laches or the statute of limitations (see generally
Lahren v Boehmer Transp. Corp., 49 AD3d 1186, 1187; Cervilli v Kezis,
306 AD2d 430).

     Contrary to respondent’s contention, we conclude that petitioner
established by a preponderance of the evidence that respondent engaged
in acts constituting disorderly conduct (see Matter of Hagopian v
Hagopian, 66 AD3d 1021, 1022). The court’s “assessment of the
credibility of the witnesses is entitled to great weight, and the
court was entitled to credit the testimony of [petitioner] over that
of [respondent]” (Matter of Scroger v Scroger, 68 AD3d 1777, 1778, lv
                            -2-                  492
                                           CAF 11-00770

denied 14 NY3d 705).




Entered:   April 20, 2012         Frances E. Cafarell
                                  Clerk of the Court
