IN RE: DARLENE B. (2026)

Order of fact-finding and disposition (one paper) of the Family Court, New York County (Pamela B. Scheininger, J.), entered on or about November 15, 2024, which, after a fact-finding hearing, found that respondent committed the family offense of menacing in the second degree, and bringing up for review an order of protection, same court and Judge, entered on or about November 15, 2024, issued on behalf of petitioner, unanimously affirmed, without costs.

Family Court correctly determined that the parties were previously involved in an “intimate relationship,” and thus properly exercised jurisdiction over the matter on the basis that the underlying offense was a family offense (see Family Ct Act § 812[1][e]).  The parties’ testimony established that they began dating in May 2002, were living together by December 2004, and ended their relationship in 2010.  Respondent's testimony also established that she began contacting petitioner in 2021 because she believed that petitioner owed her $500 for credit card transactions that petitioner had supposedly incurred near the end of the relationship.  That the parties were not romantically involved for a number of years before the petition was filed is of no moment under the statute (Matter of Phyllis H. v. Didier C., 182 A.D.3d 511, 512, 120 N.Y.S.3d 773 [1st Dept. 2020]).

Family Court properly admitted into evidence an April 2021 text message and a July 2021 voice mail in which respondent threatened petitioner, as respondent's statements in those messages are admissible as party admissions (see e.g. Matter of Maxwell P., [Katherine S.], 196 A.D.3d 416, 416–417, 146 N.Y.S.3d 786 [1st Dept. 2021];  Commercial Ins. Co. of Newark, N.J. v. Popadich, 68 A.D.3d 401, 402, 890 N.Y.S.2d 36 [1st Dept. 2009]).

Respondent failed to object to petitioner's testimony about an incident in which respondent confronted petitioner at the courthouse in August 2021.  Therefore, respondent's argument that Family Court erred in allowing petitioner to testify to that incident is unpreserved for our review (see Matter of F.B. v. W.B., 248 A.D.2d 119, 119, 669 N.Y.S.2d 551 [1st Dept. 1998]).

Moreover, the court did not violate respondent's right to due process by referring in its order to certain text messages that petitioner testified to but were not alleged in the original family offense petition, as Family Court properly conformed the pleadings to the proof.  Because the transcripts of the fact-finding hearing reveal that the court's determination to conform the pleadings rested on respondent's own admissions at the hearing, respondent was not hindered in preparation of her case and did not suffer any prejudice from surprise (see Matter of Melinda B. v. Jonathan L.P., 187 A.D.3d 631, 631, 131 N.Y.S.3d 148 [1st Dept. 2020]).  In addition, contrary to respondent's contention, she had a full and fair opportunity to address allegations concerning the July 2021 voice mail, the August 2021 courthouse confrontation, and a July 2023 telephone call.  Indeed, respondent herself testified to all of that evidence at the fact-finding hearing (see Matter of N.R. [D.W.], 227 A.D.3d 596, 596, 211 N.Y.S.3d 62 [1st Dept. 2024]).

Finally, a fair preponderance of the evidence established that respondent committed the family offense of menacing in the second degree (Family Ct Act § 832;  Penal Law § 120.14[2]).  The testimony at the fact-finding hearing showed that respondent threatened to kill petitioner on at least two occasions, thereby placing petitioner in reasonable fear of physical injury (see Matter of Carmen L. v. Rafael R., 163 A.D.3d 436, 437, 76 N.Y.S.3d 560 [1st Dept. 2018]).  In addition, respondent appeared at petitioner's place of employment after threatening her, and as respondent acknowledged during her testimony, she understood that petitioner would find her presence alarming.  Given the evidence presented at the hearing, there is no basis to set aside Family Court's determination that petitioner's testimony was credible (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975];  Matter of Amanda R. v. Daniel A.R., 166 A.D.3d 462, 463, 89 N.Y.S.3d 21 [1st Dept. 2018]).