IN RE: Y.M.R.P. (2025)

Order, Family Court, Bronx County (Tamara Schwarzman, Ref.), entered on or about March 27, 2024, which, to the extent appealed from as limited by the briefs, upon judicial acceptance of respondent's admission that he committed the family offense of harassment in the second degree, granted petitioner a limited final order of protection for a period of two years, unanimously modified, on the law and facts, to the extent that the matter is remanded to Family Court for issuance forthwith of an order of protection that requires respondent to vacate the shared residence and stay away from petitioner for a period of two years, and otherwise affirmed, without costs.

Before the fact-finding hearing was completed, respondent ex-husband consented to a finding that he committed the family offense of harassment in the second degree and stated that he was willing to consent to a final stay-away order of protection.  Family Court accepted his admission.  Although the court did not conduct a full allocution of respondent, he did not object to the court's characterization of his admission and, because he did not appeal from the order, the issue of the sufficiency of respondent's admission is not properly before this Court (see Matter of M.H. v. C.S.T., 226 A.D.3d 539, 539, 207 N.Y.S.3d 515 [1st Dept. 2024];  Matter of Opportune N. v. Clarence N., 110 A.D.3d 430, 431, 972 N.Y.S.2d 245 [1st Dept. 2013]).

Upon acceptance of respondent's admission, the court was empowered to issue an order of protection (Family Court Act § 154–c[3]), which may set “reasonable conditions of behavior,” including that the respondent “stay away from the home ․ of the other spouse” (Family Court Act § 842[a];  see also Victoria C. v. Higinio C., 1 A.D.3d 173, 766 N.Y.S.2d 563 [1st Dept. 2003];  Matter of V.C. v. H.C., 257 A.D.2d 27, 35, 689 N.Y.S.2d 447 [1st Dept. 1999]).  However, notwithstanding its acceptance of respondent's admission to all the allegations in the petition, the court issued only a limited order of protection requiring respondent to refrain from committing a family offense against petitioner.

Based upon the allegations in the petition as well as petitioner's testimony at the dispositional hearing, the court improvidently exercised its discretion by failing to direct respondent to stay away from petitioner and vacate the apartment that both parties leased and where they resided during the marriage.  After their divorce, petitioner continued to reside in the apartment with her adult daughter.  The petition alleges that respondent returned to the apartment, forcefully bit petitioner on her forehead with extreme force causing her physical injury, and then, the next day, threatened her with a knife and then a metal bar, cursed at her, threatened to kill her, and grabbed her phone and threw it on the floor.  Petitioner fled the apartment and slept in a friend's living room for months out of fear for her safety (see Matter of M.H. v. C.S.T., 226 A.D.3d at 539, 207 N.Y.S.3d 515;  Matter of Shirley D.-A. v. Gregory D.-A., 168 A.D.3d 635, 636, 93 N.Y.S.3d 28 [1st Dept. 2019]).  Under these circumstances, a full stay-away order with an order of exclusion “will likely be helpful in eradicating the root of the family disturbance and fully protect petitioner” (Matter of Doris M. v. Yarenis P., 161 A.D.3d 502, 503, 76 N.Y.S.3d 47 [1st Dept. 2018];  Quintana v. Quintana, 237 A.D.2d 130, 654 N.Y.S.2d 27 [1st Dept. 1997];  see also Family Court Act § 842).