IN RE: ALISON EE. (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Saratoga County (Heather Brondi, J.), entered February 6, 2025, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 8, for an order of protection.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of three children (born in 2010, 2017 and 2019).  In January 2025, at the beginning of a scheduled supervised visit between the father and the children, the father grew angry at the mother and the visit was ultimately canceled.  The mother thereafter filed a family offense petition against the father, alleging, as relevant here, that the father had committed harassment in the second degree.¹  Following a fact-finding hearing, Family Court concluded that the mother failed to establish by a preponderance of the evidence that the father's behavior rose to the level of harassment in the second degree and thus dismissed the mother's petition.  The mother appeals.²

“The petitioner in a family offense proceeding bears the burden of establishing, by a fair preponderance of the evidence, that the respondent committed one or more of the family offenses specified in Family Ct Act § 821(1)(a)” (Matter of Boltz v. Geraci, 230 A.D.3d 1450, 1451, 218 N.Y.S.3d 844 [3d Dept. 2024] [citations omitted];  see Matter of Pauline DD. v. Dawn DD., 212 A.D.3d 1039, 1040–1041, 181 N.Y.S.3d 771 [3d Dept. 2023], lv denied 39 N.Y.3d 915, 2023 WL 3960574 [2023]).  The family offense of harassment in the second degree is committed, as pertinent in this case, when a person, “with intent to harass, annoy or alarm another person ․ engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose” (Penal Law § 240.26[3];  see Matter of Samah DD. v. Mark VV., 235 A.D.3d 1116, 1119–1120, 228 N.Y.S.3d 715 [3d Dept. 2025], lv denied 44 N.Y.3d 901, 2025 WL 2618064 [2025]).  “[A] pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support” a finding of harassment in the second degree (Matter of Marvin I. v. Raymond I., 193 A.D.3d 1279, 1280, 146 N.Y.S.3d 344 [3d Dept. 2021] [internal quotation marks and citations omitted];  see Matter of McKenzie v. Berkovitch, 192 A.D.3d 1413, 1415, 145 N.Y.S.3d 178 [3d Dept. 2021];  Matter of Wandersee v. Pretto, 183 A.D.3d 1245, 1245–1246, 121 N.Y.S.3d 705 [2020]).  That said, an isolated incident is insufficient to establish harassment (see Matter of Marvin I. v. Raymond I., 193 A.D.3d at 1280, 146 N.Y.S.3d 344).

The hearing evidence reflected that, when the mother and the father arrived at the agreed-upon meeting place for the father to visit with the children, the mother brought only the youngest child and not the two older children.  Upon realizing this, the father became angry, called the mother several curse words, and threw a piece of cheese at her vehicle.  The mother then terminated the visit and the parties drove away in their separate vehicles.  By the mother's account, the entire interaction lasted approximately five minutes.  Even when viewing this evidence in the light most favorable to the mother, we agree with Family Court that she failed to meet her burden of establishing a course of conduct or repeated acts necessary to commit harassment in the second degree (see Matter of Evelyn EE. v. Lorraine B., 152 A.D.3d 915, 917–918, 58 N.Y.S.3d 740 [3d Dept. 2017], lv denied 30 N.Y.3d 903, 2017 WL 4697363 [2017];  Matter of Christina MM. v. George MM., 103 A.D.3d 935, 936–937, 959 N.Y.S.2d 758 [3d Dept. 2013];  compare Matter of Amber JJ. v. Michael KK., 82 A.D.3d 1558, 1560, 920 N.Y.S.2d 448 [3d Dept. 2011]).  Accordingly, the petition was appropriately dismissed.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The mother also alleged that the father had committed harassment in the first degree and criminal contempt in the second degree, but has raised no arguments on appeal with regard to those allegations, such that they are deemed abandoned (see Matter of Paul Y. v. Patricia Z., 190 A.D.3d 1038, 1040 n 2, 137 N.Y.S.3d 836 [3d Dept. 2021]).

2.   The appellate attorneys for the oldest and middle child, respectively, are supportive of the mother's position on appeal, while the appellate attorney for the youngest child favors affirming Family Court's determination.  The father did not file a brief on appeal.

Ceresia, J.

Aarons, J.P., Reynolds Fitzgerald, Fisher and Corcoran, JJ., concur.