IN RE: D.K. (2025)

Order, Family Court, Bronx County (Lesley A. Johanssen, Ref.), entered on or about October 13, 2023, which, to the extent appealed from as limited by the briefs, upon a fact-finding determination, dismissed the petition for an order of protection due to insufficient evidence of the family offenses of disorderly conduct, harassment in the second degree, and menacing in the third degree, unanimously affirmed, without costs.

The determination that respondent's actions did not rise to the family offense of disorderly conduct, harassment in the second degree, or menacing in the third degree is supported by a fair preponderance of the evidence (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009];  Penal Law §§ 240.20, 240.26, 120.15).  The offense of disorderly conduct was properly dismissed as none of the alleged acts occurred in public, were intended to cause a public inconvenience, annoyance or alarm, or recklessly created such a risk (see Matter of Janice M. v. Terrance J., 96 A.D.3d 482, 483, 945 N.Y.S.2d 693 [1st Dept. 2012]).  No evidence was presented as to how respondent intended to cause or recklessly created a risk of causing, public inconvenience, annoyance, or alarm given that the altercation occurred in the parties' private residence (see Matter of Linda H. v. Ahmed S., 188 A.D.3d 597, 599, 136 N.Y.S.3d 263 [1st Dept. 2020]).

With respect to the offense of harassment in the second degree, petitioner failed to adduce evidence that would support a finding that respondent engaged in a course of conduct or repeatedly committed acts which alarmed or seriously annoyed petitioner, and which served no legitimate purpose (Penal Law § 240.26[3]).  Petitioner's testimony that respondent cursed at him and demanded that he talk to her did not establish conduct that served no legitimate purpose.  Use of foul or unpleasant language does not rise to the level of harassment (see Matter of Thelma U. v. Miko U., 145 A.D.3d 527, 528, 43 N.Y.S.3d 321 [1st Dept. 2016]).

As for the offense of menacing in the third degree, nothing in the petition or testimony supports the claim that respondent's conduct put petitioner in fear of death, imminent serious injury, or physical injury (see Matter of Alexandra U. v. Shalva S., 214 A.D.3d 468, 468–469, 184 N.Y.S.3d 346 [1st Dept. 2023]).

We find no basis for disturbing the court's determination crediting respondent's version of events over petitioner's version (see Matter of Marcela H–A. v. Azouhouni A., 132 A.D.3d 566, 566–567, 17 N.Y.S.3d 869 [1st Dept. 2015]).

Family offense petitions must set forth factual allegations which, if proven, would establish that the respondent has committed a qualifying family offense (see Family Ct Act § 821[1][a];  Matter of Qin Fen Wang v. Chee Kiang Foo, 171 A.D.3d 1187, 1188, 99 N.Y.S.3d 444 [2d Dept. 2019]).  Here, Family Court properly concluded that certain allegations in the family offense petition were too vague to have put respondent on notice of the incidents to which petitioner testified at trial.  They were thus properly excluded from Family Court's consideration.  However, even if the allegations were properly included in the petition, our conclusions would be the same based on the court's credibility determinations and the elements of each family offense.