P.O.H., Petitioner, v. K.F., Respondent. (2026)

This Decision and Order is being entered following a hearing held pertaining to the above-captioned proceeding commenced by Petitioner against Respondent pursuant to New York State Civil Practice Law and Rules (hereinafter "CPLR") § 6342.

Relevant Background & Procedural History

On July 26, 2026, Petitioner commenced this proceeding with the filing of an application for extreme risk protection order (hereinafter "Application") and by simultaneously filing a request for judicial intervention.¹ The Application asserted, in part, the following facts and circumstances supporting the requested relief:

"[Redacted]"

On that date, the undersigned entered a temporary extreme risk protection order (hereinafter "Temporary Order"),² to remain in place until July 26, 2027; permitting the Greenburgh Police Department to conduct a search of the premises known as [Redacted]; and a vehicle with New York State registration number [Redacted].

This Court simultaneously entered a background investigation order (hereinafter "Background Investigation Order"),³ directing that the Greenburgh Police Department conduct a background investigation and submit a written report to the Court and each party, subject to any redactions directed, regarding whether the respondent: (1) has any prior criminal conviction for an offense involving domestic violence, use of a weapon, or other violence; (2) has any currently pending criminal charge or violation; (3) is currently on parole or probation; (4) possesses any registered firearms, rifles, or shotguns; (5) has been subject to any order of protection; and (6) has violated or allegedly violated any order of protection.

Finally, this Court issued a notification of hearing,⁴ directing that Petitioner serve Respondent with same and any underlying papers in this action so that he may appear for a hearing to be held on the Application before the undersigned on July 29, 2026, at 9:00 a.m.

On July 29, 2026, this matter was called and an appearance was made by Petitioner as a self-represented litigant, with no appearance by Respondent or application for adjournment having been filed by Respondent. Petitioner advised this Court that he was unable to effectuate service upon Respondent and requested an adjournment of the hearing with the issuance of an amended notification of hearing. This application was granted and an amended notification of hearing (hereinafter "Amended Notification of Hearing"),⁵ was entered directing that Petitioner serve Respondent with same and any underlying papers in this action so that he may appear for a hearing to be held on the Application before the undersigned on July 31, 2026, at 9:00 a.m.

On July 31, 2026, both parties appeared as self-represented litigants and following being advised of their right to be represented by counsel, advised the undersigned that they wished to proceed as self-represented litigants, and were presented with the following documents which were marked and filed as court exhibits: (1) Part Rules; and (2) Self-Represented Litigant Information Sheet.⁶ The Court then proceeded with the hearing.

Hearing Testimony and Documents in Evidence

The hearing proceeded and was completed in approximately twenty minutes. While both parties placed an opening and closing statement on the record, Petitioner failed to call any witnesses or admit any exhibits into evidence. While Respondent called only himself as a witness, Petitioner failed to engage in any cross-examination of Respondent, and Respondent failed to offer any exhibits into evidence.

Legal Analysis

A. Witness Credibility.

Determinations of credibility depend in large part on the court's assessments of the character, temperament, and sincerity of the parties, the trial court's determination should be accorded deference, and its determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Sanchez v. Rexhepi, 30 N.Y.S.3d 170 [2d Dept 2016]). "In matters of this character 'the findings of the nisi prius court must be accorded the greatest respect' " (Eschbach v. Eschbach, 56 NY2d 167 [1982], quoting, Matter of Irene O., 381 N.Y.S.2d 865 [1975]).

"The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record" (Barnet v. Cannizzaro, 3 AD2d 745 [2d Dept 1957]).

This Court did not find Respondent to lack credibility as he presented testimony in a clear and direct manner, during which time he appeared sincere.

B. Opening and Closing Arguments.

CPLR § 4016 sets forth each litigant's right to make an opening and closing statement at hearing or trial, with a closing often referred to as a summation, noting, "[a]t the close of all the evidence on the issues tried, an attorney for each such party may make a closing statement in inverse order to opening statements." Speaking to the right of counsel to engage in a closing statement to the trier of fact, the Appellate Division, Second Department noted:

"Regarding the role of counsel, as a general principle there exists a right of fair comment on the evidence, described as follows:

'It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve and it ought not to be narrowed by any close construction, but should be interpreted in the largest sense * * * The jury system would fail much more frequently than it now does if freedom of advocacy should be unduly hampered and counsel should be prevented from exercising within the four corners of the evidence the widest *422 latitude by way of comment, denunciation or appeal in advocating his cause' (Williams v. Brooklyn El. R.R. Co., supra, 126 NY at pp. 102—103, 26 N.E. 1048).

Although broad in scope, counsel's liberty of discussion must remain within the issues and the evidence (Taype v. City of New York, 82 AD2d 648, 651, 442 N.Y.S.2d 799; Horton v. Terry, 126 App.Div. 479, 480, 110 N.Y.S. 646)" (Braun v. Ahmed, 127 AD2d 418 [2d Dept 1987]).

The limitation of opening and closing statements by trial courts to include statements made within the issues and evidence have consistently been upheld (see Zurel U.S.A., Inc., v. Magnum Realty Corp., 279 AD2d 520 [2d Dept 2001]; Acosta v. City of New York, 153 AD3d 765 [2d Dept 2017] ["At the same time, a trial court may properly limit an attorney from commenting about matters that are not in evidence. *** Here the court did not improvidently exercise its discretion in sustaining objections to remarks that were not supported by the record"]). As noted by the Appellate Division, Third Department:

"We reiterate that the facts recited in a closing statement do not reflect the evidence from a hearing but rather the position of a particular party (see Matter of Timothy V. v. Sarah W., 144 AD3d 1423, 1424 n, 42 N.Y.S.3d 398 [2016]). Accordingly, a court should refrain from adopting closing statements by the parties as findings of fact. Notwithstanding **120 the foregoing, the matter need not be remitted given that the court provided a basis for its determination and the record *1132 is sufficiently developed for us to exercise our authority to make independent findings consistent with the best interests of the child (see Matter of Mariah K. [Rachael K.—Jay L.], 165 AD3d 1379, 1381, 86 N.Y.S.3d 282 [2018])" (Kathleen K. v. Daniel L., 177 AD3d 1130 [3d Dept 2019]).

"Cross examination of an adverse witness is a matter of right in every trial of a disputed issue of fact," and "[a]lso, cross-examination is the principal means by which the believability of a witness and the truth of testimony is tested" (Graves v. American Express, 175 Misc 2d 285 [App. T. 2d Dept 1997] [internal citations omitted]). It has been held that cross examination may be waived by action or inaction (Village of Tuckahoe v. Public Service Commission of the State of New York, 150 AD2d 466 [2d Dept 1989]).

Here, the record reflects that while Petitioner made an opening statement, he then failed to call himself as a witness his case to provide testimony and rested without calling any witnesses or seeking to admit anything into evidence. Thereafter, closing statements were made by both parties, as self-represented litigants. Upon reviewing the legal authority referenced herein, this Court must determine that to the extent that any statements made by either party during their opening and closing statements went beyond the issues and evidence before this Court at hearing, same will be disregarded when making any determinations following hearing. This determination is required as failing to proceed in this manner would permit both parties to utilize their respective opening and closing statements in lieu of providing direct testimony which would have afforded the other the opportunity to engage in cross examination of him, and such right was in no way waived by either party in this hearing.

C. Request for Extreme Risk Protection Order.

Pursuant to CPLR Article 63-a, a petitioner may commence a proceeding to obtain against the designated respondent an extreme risk protection order (hereinafter "ERPO") and upon the filing of such application, in the event the receiving court finds "probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law,"⁷ the court may issue a temporary ERPO prohibiting the respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.⁸ Prior to the issuance of a temporary ERPO, the court must consider "any relevant factors" of the respondent including, but not limited to, the following:

"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

(b) a violation or alleged violation of an order of protection;

(c) any pending charge or conviction for an offense involving the use of a weapon;

(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

(e) any history of a violation of an extreme risk protection order;

(f) evidence of recent or ongoing abuse of controlled substances or alcohol;

(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor; or

(h) evidence of recent acts of aggravated cruelty to animals as defined in section three hundred fifty-three-a of the agriculture and markets law.

In considering the factors under this subdivision, the court shall consider the time that has elapsed since the occurrence of such act or acts and the age of the person at the time of the occurrence of such act or acts.

For the purposes of this subdivision, 'recent' means within the six months prior to the date the petition was filed."⁹

In the event of the issuance of a temporary ERPO, the court must schedule a hearing on the application and possible issuance of an ERPO, no sooner than three nor more than six business days after service of the temporary order; and, if a temporary ERPO is not issued, a hearing shall be held no later than ten business days after the date on which such application is served on the respondent:¹⁰

"(a) has any prior criminal conviction for an offense involving domestic violence, use of a weapon, or other violence;

(b) has any criminal charge or violation currently pending against him or her;

(c) is currently on parole or probation;

(d) possesses any registered firearms, rifles or shotguns; and

(e) has been, or is, subject to any order of protection or has violated or allegedly violated any order of protection."¹¹

The statute speaks directly to both petitioner's burden of proof that must be met for the entry of an ERPO, as well as the evidence and testimony that may be considered by the court:

"At the hearing pursuant to subdivision one of this section, the petitioner shall have the burden of proving, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law. The court may consider the petition and any evidence submitted by the petitioner, any evidence submitted by the respondent, any testimony presented, and the report of the relevant law enforcement agency submitted pursuant to subdivision nine of section sixty-three hundred forty-two of this article. The court shall also consider the factors set forth in subdivision two of section sixty-three hundred forty-two of this article."¹²

Here, the hearing was noticed and scheduled in the timeframe set forth pursuant to the above-referenced statute, and both parties were afforded their opportunity to proceeding with the hearing upon their appearance before this Court. At the call of this case, both parties were informed of their right to be represented by counsel or proceed as self-represented litigants and both did so with the understanding that they had received the Part Rules of this Court and would be bound to comply with them as any attorney would appearing before the undersigned. At hearing, Petitioner had the burden of proof set forth in the statute and failed to meet that burden as Petitioner failed to provide any testimony himself, to offer testimony of other potential witnesses or to offer any exhibits into evidence during the hearing. As noted above, neither the opening statement or closing statement of the Petitioner may be considered as a substitute for such testimony by Petitioner. Accordingly, this Court must dismiss this Application and vacate the Temporary Extreme Risk Protection Order simultaneous with this Decision and Order.

D. Request for Other Relief.

Any relief sought by either party, pertaining to the subject hearing in this matter, specifically not granted or otherwise addressed herein is denied.

* * *

Based upon the foregoing, it is hereby

ORDERED that Petitioner's Application is hereby denied; and it is further

ORDERED that the Temporary Extreme Risk Protection Order is hereby vacated; and it is further

ORDERED that this matter is hereby sealed; and it is further

ORDERED that Petitioner shall serve Respondent, via certified mail, this Decision And Order After Hearing with Notice of Entry by August 5, 2026, and shall file an Affidavit of Service on NYSCEF by that date; and it is further

ORDERED that to the extent any relief sought has not been granted, it is expressly denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: July 31, 2026

White Plains, New York

ENTER:

HON. JAMES L. HYER, J.S.C.

FOOTNOTES

1.    See, NYSCEF Doc. Nos. 1-2.

2.    See, NYSCEF Doc. No. 5.

3.    See, NYSCEF Doc. No. 3.

4.    See, NYSCEF Doc. No. 4.

5.    See, NYSCEF Doc. No. 7.

6.    See, NYSCEF Doc. Nos. 8-9.

7.    See, New York State Mental Hygiene Law 9.39 (a) ["Likelihood to result in serious harm" as used in this section shall mean: 1. substantial risk of physical harm to themself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that they are dangerous to themself, or 2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm"].

8.    See, CPLR § 6342(1).

9.    See, CPLR § 6342(2).

10.    See, CPLR § 6342(4)(d)(ii); CPLR § 6342(5).

11.    See, CPLR § 6342(9).

12.    See, CPLR § 6343(2).

James L. Hyer, J.