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

683
CAF 11-00771
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF PAUL D. MARQUARDT,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

URSULA M. MARQUARDT, RESPONDENT-APPELLANT.


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


     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, insofar as appealed from, found that
respondent had committed a family offense.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs and the amended petition is
dismissed.

     Memorandum: Respondent wife appeals from an “Order of Fact-
Finding and Disposition” in which Family Court concluded that she
committed acts constituting the family offense of harassment in the
first or second degree against petitioner husband (Family Ct Act § 812
[1]; Penal Law §§ 240.25, 240.26 [3]). Initially, we note that the
order of protection issued in conjunction with the order on appeal has
expired, and we thus generally would dismiss the appeal as moot (see
Matter of Kristine Z. v Anthony C., 43 AD3d 1284, 1284-1285, lv denied
10 NY3d 705). Here, however, respondent challenges only Family
Court’s finding that she committed a family offense and, “ ‘in light
of enduring consequences which may potentially flow from an
adjudication that a party has committed a family offense,’ the appeal
from so much of the order . . . as made that adjudication is not
academic” (Matter of Hunt v Hunt, 51 AD3d 924, 925).

     With respect to the merits, the court concluded that respondent
committed a family offense by engaging in acts that would constitute
either first or second degree harassment “by cutting open [her] pills
on the counter, knowing that the Petitioner has allergies” to
medications. We agree with respondent that the evidence is not
legally sufficient to establish that she committed a family offense.
“A petitioner bears the burden of proving by a preponderance of the
evidence that respondent committed a family offense” (Matter of
Chadwick F. v Hilda G., 77 AD3d 1093, 1093-1094, lv denied 16 NY3d
703). Although harassment in the first or second degree is a family
offense (see Family Ct Act § 812 [1]), and we afford great deference
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                                                         CAF 11-00771

to the court’s determination of credibility (see Matter of Gray v
Gray, 55 AD3d 909, 909; Matter of Wallace v Wallace, 45 AD3d 599), we
conclude that petitioner failed to establish by a preponderance of the
evidence that respondent engaged in acts constituting either offense.
Thus, the court erred in failing to dismiss the amended petition (see
generally Matter of Woodruff v Rogers, 50 AD3d 1571, 1571-1572, lv
denied 10 NY3d 717).

     To establish that respondent committed acts constituting
harassment in the second degree, petitioner was required to establish
that respondent engaged in conduct that was intended to harass, annoy
or alarm petitioner, that petitioner was alarmed or seriously annoyed
by the conduct, and that the conduct served no legitimate purpose (see
Penal Law § 240.26 [3]; Matter of Ebony J. v Clarence D., 46 AD3d 309;
Matter of Cavanaugh v Madden, 298 AD2d 390, 392). Even assuming,
arguendo, that petitioner was alarmed or seriously annoyed by the
conduct of respondent in opening her medicine to eat it with pudding
based on her inability to swallow the pills, and further assuming,
arguendo, that respondent thereby intended to harass, annoy or alarm
him, we conclude that petitioner failed to establish that the conduct
served no legitimate purpose (see generally Chadwick F., 77 AD3d at
1094; Matter of Charles E. v Frank E., 72 AD3d 1439, 1441; Matter of
Eck v Eck, 44 AD3d 1168, 1169, lv denied 9 NY3d 818). Indeed,
petitioner testified that respondent took the medication as prescribed
to prevent acid reflux, and that respondent opened the pills and ate
the medication with food because she was unable to swallow the pills.
With respect to petitioner’s allegation that he was allergic to
certain medications, he failed to establish that he was allergic to
the particular medication taken by respondent, or to introduce any
expert evidence in support of his testimony that the medication was “a
poison, a toxic poison that causes death.”

     Similarly, petitioner failed to establish that respondent’s acts
constituted harassment in the first degree. That statute requires,
inter alia, that the perpetrator commit “acts which place[ another
person] in reasonable fear of physical injury” (Penal Law § 240.25).
Even assuming, arguendo, that petitioner was in fear of physical
injury when respondent opened her medication, we conclude for the
reasons set forth above that he failed to establish that his fear was
reasonable.

     All concur except MARTOCHE, J., who dissents and votes to affirm
in the following Memorandum: I respectfully dissent, and would affirm
the order insofar as appealed from. In my view, petitioner husband
established by a preponderance of the evidence that respondent wife
committed a family offense, and I agree with the majority that Family
Court’s finding that she did so is not academic despite the fact that
the underlying order of protection has expired (see Matter of Hunt v
Hunt, 51 AD3d 924, 925). Preliminarily, I note that, in this
proceeding, respondent filed an amended petition in which she accused
petitioner of engaging in acts against her that constituted disorderly
conduct, harassment, aggravated harassment and attempted assault. The
relevant acts included one incident in which petitioner screamed at
respondent and ripped apart her rosary beads, and a second incident
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                                                         CAF 11-00771

when, while calling respondent names, petitioner struck respondent
with a door upon opening it and then tried to rip the door off its
hinges. Petitioner in turn filed an amended family offense petition
against respondent, alleging that she committed the family offenses of
reckless endangerment, harassment and menacing. Specifically,
petitioner alleged that on several occasions respondent opened
capsules of controlled substances in his presence on eating surfaces
in the kitchen even though he had informed her that he was allergic to
the controlled substances. Petitioner further alleged that, despite
his repeated protests, respondent continued to open the capsules in
his presence. The court considered both amended petitions at the
fact-finding hearing. The only witnesses were the parties and their
relatives. The court granted stay away orders of protection against
each party, which expired in March 2012. The court found that
respondent “engaged in conduct constituting harassment in that she
with the intent to harass or to alarm or annoy the petitioner did
after being asked to refrain from doing so cut open medications on a
kitchen counter where food is prepared with knowledge that . . . the
petitioner has allergies to certain medications and would be annoyed
and alarmed by the respondent continuing to engage in such conduct.”
The court also found that petitioner committed the family offense of
disorderly conduct, when he slammed the basement door with sufficient
force to damage the door frame “in such a manner to frighten and alarm
the [respondent],” and that petitioner committed another family
offense of disorderly conduct, when he admittedly destroyed
respondent’s rosary beads without justification. The court stated in
its decision that “ninety percent of the testimony” at the hearing was
“utter nonsense” and warned the parties that it would “not waste
another entire day listening to what [it] consider[ed] to be inane
blather” if either party violated the orders of protection. In a
previous appeal by petitioner, this Court affirmed the order
determining, inter alia, that he committed a family offense against
respondent (Matter of Marquardt v Marquardt, 94 AD3d 1436).

     In my view, the court’s “assessment of the credibility of the
witnesses is entitled to great weight” (Matter of Scroger v Scroger,
68 AD3d 1777, 1778, lv denied 14 NY3d 705). This case in particular
is appropriate for application of our general rule deferring to the
findings made by Family Court after the court has made credibility
determinations. Here, the parties chose to avail themselves of the
judicial system for acts that otherwise did not warrant police
intervention. The majority concludes that petitioner failed to
establish that respondent’s conduct served no legitimate purpose with
respect to harassment in the second degree. I cannot agree with that
conclusion. Petitioner testified that, while respondent may have
needed to take her medication, she did not need to take her medication
on eating surfaces in the kitchen and did so despite his objections to
her conduct. The majority further concludes that petitioner failed to
establish that he was allergic to the particular medication taken by
respondent, but his testimony that he had allergies to the medications
was credited by the court and I see no reason to disturb that factual
determination. Similarly, the majority concludes that, with respect
to harassment in the first degree, petitioner failed to establish that
his fear of physical injury from respondent opening her medication was
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                                                         CAF 11-00771

reasonable. The testimony of petitioner established, however, that he
was allergic to many medicines and that he was fearful of ingesting
respondent’s medications.

     Finally, in my view, the court disposed of both amended petitions
together, as evidenced by the fact that it issued mutual orders of
protection. The parties obviously were antagonistic toward each
other, and the court made findings with respect to the actions of each
party against the other. Further, the court warned the parties that
it regarded the family offense petitions as relatively minor. I agree
with the court’s admonition to the parties that they should not use
the judicial system to resolve domestic disputes that are not of a
serious nature. Certainly, the “crimes” committed by both parties
were minor and did not require police intervention. I see no reason
to disturb the court’s credibility determinations with respect to
petitioner’s amended petition, just as we determined in petitioner’s
prior appeal that “[t]he court’s ‘assessment of the credibility of the
witnesses is entitled to great weight’ ” (Marquardt, 94 AD3d 1436).




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
