IN RE: Michael J. GEREMSKI (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Respondent appeals from an order of protection issued in a proceeding pursuant to Family Court Act article 8 upon a finding that she committed acts constituting the family offense of harassment in the second degree against petitioner (see Penal Law § 240.26 [3]; see also Family Ct Act § 812 [1]). Initially, we note that, while the order on appeal has expired, the appeal is not moot “because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision” (Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 671, 3 N.Y.S.3d 288, 26 N.E.3d 1143 [2015]; see Matter of Shephard v. Ray, 137 A.D.3d 1715, 1716, 28 N.Y.S.3d 211 [4th Dept. 2016]).

With respect to the merits, we agree with respondent that the evidence is not legally sufficient to establish that she committed the family offense in question. “A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense” (Matter of Harvey v. Harvey, 214 A.D.3d 1462, 1462, 184 N.Y.S.3d 666 [4th Dept. 2023] [internal quotation marks omitted]). 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]). Here, the evidence presented by petitioner at the hearing consisted primarily of petitioner's testimony that respondent posted “negative posts and stuff” on social media about him including, in particular, two posts on Facebook about an unnamed “ex” that he believed referred to him, after which respondent blocked him from viewing her posts. We conclude under the circumstances of this case that the evidence presented by petitioner failed to establish by a preponderance of the evidence that respondent engaged in acts constituting harassment in the second degree (see Matter of Marquardt v. Marquardt, 97 A.D.3d 1112, 1113-1114, 948 N.Y.S.2d 484 [4th Dept. 2012]).

In light of our determination, we do not consider respondent's remaining contention.