IN RE: E.Y.A.-G. (2024)

Order, Family Court, New York County (Gail A. Adams, Ref.), entered on or about May 18, 2023, which, after an inquest brought under article 8 of the Family Court Act, dismissed the petitions for violation of an order of protection dated February 25, 2019 and for an order of protection, and vacated all prior orders of protection, unanimously modified, on the law, to reinstate the prior orders of protection, and otherwise affirmed, without costs.

Family Court properly dismissed the violation petition because petitioner failed to make a showing of good cause under Family Court Act § 842 to extend the February 25, 2019 order of protection.  At the inquest, petitioner did not show that an extension was necessary to prevent a recurrence of domestic violence, as she did not testify about incidents that would support specific claims of continued violence against her, nor did she testify that respondent violated any of the prior orders of protection (see Matter of Ironelys A. v. Jose A., 140 A.D.3d 473, 474, 31 N.Y.S.3d 878 [1st Dept. 2016], lv dismissed 28 N.Y.3d 953, 38 N.Y.S.3d 521, 60 N.E.3d 417 [2016]).  Rather, she testified that respondent had not telephoned her and she had no idea how to contact him until his counsel responded to the appeal she filed regarding the dismissal of the Washington State divorce proceeding.

Family Court also properly dismissed the petition for an order of protection, as petitioner failed to establish prima facie that respondent's actions against her constituted, at the very least, the family offense of identity theft in the third degree.  Petitioner's testimony failed to establish by a preponderance of the evidence that respondent, knowingly and with the intent to defraud, assumed petitioner's identity and obtained goods, money, property, or services;  used credit in petitioner's name;  caused petitioner or anyone else a financial loss;  or committed a class A misdemeanor while using petitioner's identity (see Family Court Act § 832;  Penal Law § 190.78).

Because petitioner failed to establish a prima facie case that respondent committed the family offense of identity theft, the court was not required to draw a negative inference against respondent for failing to appear and testify (see Matter of Commissioner of Social Servs. v. Philip De G., 59 N.Y.2d 137, 141, 463 N.Y.S.2d 761, 450 N.E.2d 681 [1983];  cf.  Matter of Heaven C.E. [Tiara C.], 164 A.D.3d 1177, 1178, 85 N.Y.S.3d 5 [1st Dept. 2018]).  Family court's credibility determination is entitled to deference and we find no basis to disturb it (see Matter of Bridgette B.E. v. Lisandro R.C., 208 A.D.3d 1094, 1094–1095, 175 N.Y.S.3d 32 [1st Dept. 2022];  Matter of F.B. v. W.B., 248 A.D.2d 119, 119, 669 N.Y.S.2d 551 [1st Dept. 1998]).

However, Family Court should not have sua sponte vacated the prior orders of protection, including a three-year February 25, 2019 order of protection respondent consented to.  Respondent did not seek such relief or even appear at the proceeding, which in any event was not focused on the validity of the prior orders of protection.