C.S., Plaintiff, v. A.S., Defendant. (2026)

Relevant Factual and Procedural History

On April 14, 2026, this matrimonial action was commenced with Plaintiff's filing of a summons and complaint (hereinafter "Complaint"),¹ asserting that the parties had been married in March of 2024, had one child of the marriage being F. S. (D.O.B.: [Redacted]) (hereinafter "Child"), requesting dissolution of the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7), and seeking other ancillary relief.

On April 21, 2026, Defendant appeared as a self-represented litigant filing an answer.²

On May 4, 2026, Plaintiff's counsel filed a request for judicial intervention and request for a preliminary conference,³ and the next day a court notice was issued scheduling a preliminary conference to be held on May 26, 2026, at 9:30 a.m.⁴

On May 26, 2026, a preliminary conference was held for which a court transcript was so-ordered (hereinafter "5/26/26 Transcript"),⁵ wherein the undersigned advised Defendant that he had the right to be represented by counsel or proceed as a self-represented litigant and Defendant advised that he wished to proceed without counsel.⁶ The undersigned then marked as court exhibits the following documents which were filed with copies distributed to both parties: (1) Part Rules; and (2) Self-Represented Litigant Information Sheet.⁷ Following being advised that there were no pending Family Court proceedings involving the parties and Child, the undersigned directed that if any such proceedings were commenced a letter was to be filed in this action notifying the undersigned, whereafter a conference would be scheduled to determine if consolidation of such proceedings with this action was then warranted.⁸ As custody of the Child was unresolved, the undersigned then appointed as attorney for the Child [Redacted], Esq.⁹ Following the conference, a preliminary conference order and order appointing attorney for the Child were entered.¹⁰

On July 13, 2026, Plaintiff commenced a family offense proceeding in the New York State Family Court, Westchester County, known as C. S., DOB [Redacted] individually and on behalf of the infant child F. S. (DOB [Redacted]) v. A. S. (DOB [Redacted]), under file number [Redacted] and docket number [Redacted] (hereinafter "Family Offense Proceeding"), with the filing of a petition (hereinafter "Petition").¹¹ The Petition asserts that the Defendant committed one or more of the following family offenses against Plaintiff and/or the Child: (1) attempted assault; (2) assault in the second degree; (3) assault in the third degree; (4) harassment in the first degree; (5) harassment in the second degree; (6) aggravated harassment in the second degree; (7) forcible touching; (8) sexual misconduct; (9) sexual abuse in the second degree (subdivision 1); (10) sexual abuse in the third degree; (11) menacing in the second degree; (12) menacing in the third degree; and (13) reckless endangerment (hereinafter collectively "Alleged Family Offenses").

Within the Petition Plaintiff alleged that she was the one injured and provides the following description of the alleged incidents causing the proceeding to be commenced:

"On Saturday July 11, 2026, the Respondent became very angry at me because I asked him to wake up. He came toward me and was standing very close to me (He is 6' and I am 5'4"). Our daughter was right there. He started yelling at me and pointing in my face to the point that he poked me in my face. I instinctively swatted his hand away from my face. He drew back and slapped me on the side of my head so hard that it left my ear ringing. Our daughter was present for the whole event.

On Sunday June 28, 2026, I was lying down in the bedroom. He came in the bedroom. He got on top of me. I said: "What are you doing?" He said: "I need my wife". I said: "I don't want to have sex with you". He said: "You are still my wife". He then forcibly put his penis inside of me. I couldn't move or get away because he had his full weight on me. I said: "Why are you doing this? I don't want to do this". He finished. I got up and left the home. He kept calling me to check on me. I think he was afraid I would go to the police.

On Saturday morning July 11, 2026, while I was in the room trying to wake Respondent to take care of our daughter F. S. (he insists that he is the one that must take care of her at certain times), F. S. came up to me and bit me on my thigh. I was shocked. I tapped her on her butt. This was the first time I have ever done this. He said "Don't hit her-I taught her how to bite". I said "Why would you teach a toddler how to bite? She will go to school and do that to others". He said: "I taught her that because she needs to know how to defend herself."

I am afraid of the Respondent. He insists on taking care of F. S. when I go back to work Thursdays and Fridays. But he leaves F. S. completely unattended, and falls asleep for hours. He frequently leaves the staircase gate open, as well as the utility closet. F. S. can easily navigate to other areas of the house because he is asleep while she is in his care. My mother and I try to watch him, but we both have to work. We are all afraid of him. He yells at me in front of our daughter. He says: "You're fucking stupid"; "You're dumb"; "I hate you." "I hate your family"; "Shut the fuck up!" "I fucking hate you".

Last year he said, referring to our daughter, "I want to take her to Senegal, I don't want you to be her mother". Senegal is his home country. He then acquired a Senegalese birth certificate for her at the Senegalese embassy. He also frequently expresses the need for her to have a passport to go to school in Senegal, as well as his desire for her to travel to Senegal when she needs to be disciplined. We are not safe."

The Petition then includes the following relief sought by Plaintiff in the proceeding: (1) a determination that Defendant has committed one or more of the Alleged Family Offenses; (2) the entry of an order of protection specifying the following conditions of behavior to be observed by Defendant: (a) stay away from Plaintiff and Child; (b) stay away from Plaintiff's home; (c) stay away from Plaintiff's workplace; (d) refrain from menacing, harassing, assaulting or committing any family offense against Plaintiff or Child; and (e) refrain from communication including social media and third-party contact; and, (3) any other relief that is just and proper.

On July 14, 2026, within the Family Court, the Petition was assigned to Court Attorney Referee [Redacted], who entered an ex parte temporary order of protection (hereinafter "Temporary Order of Protection"),¹² in favor of Plaintiff and the Child to remain in effect until July 22, 2026, providing the following restraints on Defendant: (1) stay away from Plaintiff and Child; (2) stay away from the home of Plaintiff and Child; (3) stay away from the school, daycare, babysitters of Child; (4) stay away from the place of employment of Plaintiff; (5) that he refrain from communication with Plaintiff and Child except by e-mail to discuss the welfare of the Child, facilitate Court ordered access time with the Child or the parties' finances; and (6) refrain from any conduct that would constitute a family offense against Plaintiff and Child.

On July 22, 2026, following both parties being present in court, a second temporary order of protection was entered by Court Attorney Referee [Redacted] (hereinafter "Temporary Order of Protection #2"),¹³ which included the same provisions as the Temporary Order of Protection to remain in effect until July 24, 2026.

On July 24, 2026, following both parties being present in court, a third temporary order of protection was entered by Court Attorney Referee [Redacted] (hereinafter "Temporary Order of Protection #3"),¹⁴ which included the same provisions as the Temporary Order of Protection to remain in effect until November 17, 2026.

On July 20, 2026, seven days following the commencement of the Family Offense Proceeding, this Court was notified of the proceeding by way of a letter filing by Plaintiff's counsel,¹⁵ after which an order was entered directing that a status conference would be held wherein oral argument would be received pertaining to possible consolidation of the Family Offense Proceeding with this action to be held on July 22, 2026, at 9:00 a.m.,¹⁶ which at the request of Plaintiff's counsel was adjourned to be held on July 28, 2026, at 2:00 p.m.,¹⁷ and again adjourned on request to be held on August 4, 2026, at 3:00 p.m.¹⁸

On August 4, 2026, a conference was held before the undersigned wherein all parties and counsel appeared after which an order,¹⁹ was entered providing the following directives:

"It is hereby ORDERED that:

1. A separate Order of consolidation will be entered simultaneously with this Order, directing that the Family Offense Proceeding be consolidated herein, directing that the Clerk of the Family Court transfer the full file regarding same to the Westchester County Supreme Court, whereafter this Court will file on NYSCEF a copy of the full file related to the Family Offense Proceeding.

2. September 1, 2026 is the deadline for Defendant and the AFC to file responsive pleadings to the petition filed within the Family Offense Proceeding.

3. A hearing shall take place in this matter regarding the Family Offense Proceeding on September 22, 2026; and, September 23, 2026 from 2:00 p.m. to 5:00 p.m. each day; and, on September 24, 2026 from 9:00 a.m. to 5:00 p.m., with pre-hearing disclosure provided as set forth herein-below.

4. By September 4, 2026, each party shall serve by FedEx overnight traceable delivery between all parties, all pre-hearing disclosure including the following (hereinafter "Pre-Hearing Disclosure"): a. Witness List: enumerating all witnesses to testify at the hearing with the understanding that if a witness is not enumerated, they will be prohibited from testifying at hearing unless good cause is shown. b. Exhibit list enumerating, numeric for Plaintiff, alphabetic for Defendant, and roman numeral for the AFC, all exhibits to be utilized at hearing, with the understanding that if an exhibit is not disclosed in this manner, it will be prohibited from use at the hearing unless good cause is shown. c. Copies of all proposed exhibits, each shall be independently filed on NYSCEF and bates stamped.

5. The parties shall order a copy of the Court transcript, pay the cost of same equally and submit to be so-ordered by September 4, 2026.

6. Unless specifically modified herein, all prior decisions and orders entered in this matter remain in full force and effect."

On August 5, 2026, an order was entered consolidating the Family Court Proceeding with this action,²⁰ after which the Family Court file pertaining to the Family Offense Proceeding was filed in this action as one single document.²¹

On September 8, 2026, seven days after the deadline to file responsive pleadings, Defendant filed a document as "Affidavit or Affirmation In Opposition to Motion" which was further described in the filing as "Respond to the allegations", (hereinafter "Defendant's Responsive Pleading").²²

The following pre-hearing disclosure was filed: (1) on September 8, 2026, Defendant filed a document as "exhibit(s) list";²³ on September 12, 2026, Plaintiff's counsel filed an exhibit list, witness list, stipulation of facts and ten proposed exhibits; and Defendant filed proposed exhibits;²⁴ and on September 15, 2026, Defendant filed a witness list and exhibit list.²⁵

Hearing Testimony and Documents in Evidence

On September 22, 2026, a fact-finding hearing and dispositional hearing were held concurrently, with decision being reserved for entry of a written decision and order. At hearing, the only witnesses to testify were the parties, a transcript of the hearing was filed reflecting the exhibits moved into evidence (hereinafter "Hearing Transcript"),²⁶ and the attorney for the child indicated that she was substituting her judgment for that of the child pursuant to 22 NYCRR § 7.2(d)(3).²⁷

During the hearing Plaintiff testified that she has been married to Defendant since March of 2024 and they are the parents of the Child.²⁸ She testified that she filed a family offense petition in July 2026 which she identified as Plaintiff's Exhibit 1,²⁹ and stated that she was seeking the entry of an order of protection on behalf of herself and the Child.³⁰ She stated that she is seeking the entry of an order of protection on behalf of the Child due to her concerns about Plaintiff's neglect of the Child when he is supposed to be watching her and due to Defendant's physical and verbal assaults of Plaintiff in front of the Child.³¹

While not providing specific dates or recollections regarding certain identified incidents, Plaintiff testified that Defendant would often yell at her in the presence of the Child, claiming that he would say, "I fucking hate you," "You're stupid," "You're fucking stupid," "You're dumb," "You're a stupid bitch," "I wish you weren't F. S.'s mom."³² When asked if Plaintiff was afraid of Defendant, she responded in the affirmative, testifying that, "I'm fearful of Mr. [Redacted] because he told me that, if this court case doesn't go in his favor, he is going to do something, and I kept asking him what is he going to do, and he told me —basically, like dismissed me after that."³³

Plaintiff provided the following testimony pertaining to an incident she asserts occurred on June 28, 2026 (hereinafter "June 2026 Incident") wherein she was sexually assaulted:

"Q So, around June 28th, 2026, did something occur between you and [Redacted]?

A Yes.

Q And what happened?

A [Redacted] was in the living room on the couch —

* * *

Q And where were you?

A I went into the bedroom and laid down on the bed.

Q What time of day was it?

A I would say somewhere in the very early afternoon.

Q And who, if anyone, was in the home as well?

A My daughter.

Q And where was your daughter?

A In her room.

Q And how far is her room from your room?

A We share a wall.

Q And what happened then?

A [Redacted] came into the bedroom where I was, and he proceeded to get on top of me. I said, what are you doing? He said, I need my wife. I said, I don't want to do this, and then he continued to mount on top of me.

Q What do you mean by mount on top of you?

A Get on top of me.

Q And did you do anything?

A Yes. I tried pushing his chest away. I continuously said, I don't want this, and he forcibly put his penis inside of me.

Q Can you be more specific about how this occurred?

A I kept pushing him off of me, and he kept saying — I kept saying, I don't want this, and he kept saying, I need my wife, you're my wife.

Q Okay, And so — okay. So he was on top of you at the time that he entered you?

A Yes.

Q Okay. And what if anything did you do?

A I kept pushing his chest off me to get him off of me, but he's much stronger than me.

Q Okay. Did you—when you---testified as to what you said. Did you just say it? Did you yell it? Did you scream it? Something else?

A I kept reiterating it because I didn't want it, and I didn't scream it because my daughter was in the next room.

Q And what were you concerned about if your daughter heard that?

A Embarrassment.

Q Anything else?

A Fear.

Q Of what?

A Of her seeing this or hearing me.

Q Anything else?

A Of him potentially being dangerous.

Q And when you say him being dangerous, can you be more specific about what you were —what you were thinking?

A I was thinking that, if I'm telling him to stop and I don't want this, and he continues, and he just won't stop, then how is he going to continue to be forceful with me.

Q And when you say forceful with you, what do you mean?

A Well, he was already raping me. So I —I wasn't sure if it would get more violent.

Q At some point, did it end?

A It did.

Q And what happened? How did it end?

A When he came, I got up. I went in the shower. I wanted to get out of the house. He asked me where I'm going. I told him that I'm going to get food. He asked me to bring him back some food, and I left out the house crying."³⁴

When presented with exhibit 3, Plaintiff identified the document as printed text messages between she and Defendant on August 25, 2026, which she identified as referring to the June 28, 2026 Incident, during which she provided the following testimony pertaining to the text messages (hereinafter "August 2026 Text Messages")  ³⁵ :

"Q And I am going to ask that you read this text exchange to me. And I know that two people are on it, so one is in blue, and one is in gray. So can you say, I guess, you know, "me" when you read yours and "him" when you read his?

A Okay. I said, "Please never rape me again." He replied, "I never rape you Stop this Madness." "That's not cool." I replied, "It's not cool. You forced yourself on me and I said to stop repeatedly when I said why do you think this is ok you said bc I'm your wife." He replied, "No man come [Redacted] how can I rape you my wife been living with you for 2 years 4 months and our relationship stand for almost 4 years if it is not 4 years that's not cool saying that I understand your feelings and I'm sorry for it." He proceeded to say, "That's story is not standing I went you in every corner of earth I did not rape any where but your matrimonial bed come girl stop this madness please."

Q When he said, "I did not rape any where but your matrimonial bed," what did -- did you have any thoughts about what that meant?

A Yeah. I thought he admitted what I already know.

Q Which is what?

A That he raped me."³⁶

The Plaintiff testified that this incident was the second time she was raped by Defendant, the first occurring on April or May of this year, but was unable to provide specific details regarding that incident.³⁷ The Plaintiff then testified to a separate incident which she asserts occurred on July 11, 2026, wherein she was physically assaulted by Defendant in the presence of the Child (hereinafter "July 2026 Incident"):

"A Well, one day in particular. I believe that was July 11th. That is when he was supposed to be taking care of her. I said to him you need to watch her because I'm leaving now. Anytime that it was his demanded custodial day, I tried to get out the house. July 11th is after he raped me. So I tried to avoid staying in the house when I know it was his time to be responsible. I guess, being avoidant so I could not have any arguments or any violent interactions. So that day in particular, I said to him, you need to wake up. I'm not going to leave the house unless you wake up and if you wake up, and you're actively watching her. He told me to shut the fuck up.

Q Is that when you were standing next to each other?

A Yes. He told me leave him alone. That's when he came in the hallway, right, and she was sitting on the floor in between us, and he kept pointing his finger in my face. So I swatted his hand away from my face because his fingers wind up touching my nose, and that's when he hit me.

Q What -- did he hit you with an open or closed hand?

A Open.

Q And what part of your body did he hit?

A On my ear.

Q Okay. And in terms of the intensity of the hit, how would you describe it on a scale of one to ten?

A For me, it was a ten. I was very shocked. I've never been hit before, so it was -- I don't know. I felt like a deer in headlights. Like, time paused for me, and my ears starting ringing, so I was a little bit concerned, like, what is going to happen with my ear at this point.

Q And did it hurt?

A Yes. It hurt, and it was ringing as if some, like, damage happened to it.

Q And how far from you was your daughter when he hit you?

A She was in between us.

Q What did you do then?

A I got in the shower, and I started to get ready to leave the house.

Q And then what?

A At some point, he picked up our daughter. He came to the bathroom door, and he was like, [Redacted], we love you, and I was like -- I think maybe that moment I said, this is really becoming even more toxic than it has been."³⁸

Defendant testified that he never hit anybody and is not an aggressive person,³⁹ and asserted that Plaintiff is lying about the July 2026 Incident in order to further her motive of taking the Child from him.⁴⁰ With respect to the June 2026 Incident and August 2026 Text Messages, Defendant provided the following testimony when asked directly about his statements made within the text messages, failing to provide a clear response:

"Q One more thing. Ms. [Redacted] read a text from you that said, among other things, "I did not rape any where but your matrimonial bed."

A Yes.

Q What does that mean?

A That means that me and this lady, we been married for almost two years. We been together for almost five years. Four years, sorry. Four years, right. I never rape her anywhere. Why I wait until we're getting a divorce and I'm raping her?

Q Is that your answer, sir?

A Yes. Why would I rape her?"⁴¹

During closing arguments, Plaintiff's counsel requested that this Court make a finding of aggravated circumstances to permit an order of protection to be issued for a five-year period in favor of Plaintiff and against Defendant directing that he refrain from communication, refrain from conduct against Defendant that would constitute a family offense and stay away from her; and, with respect to the Child, that Defendant stay away from her except to facilitate Court ordered parenting time.⁴² Defendant provided a closing statement wherein he failed to present any position with respect to the aforementioned requests of Plaintiff's counsel, and merely indicated his belief that the Child should be with both parents.⁴³ The attorney for the Child then provided a closing statement wherein she noted that she found Plaintiff to have testified credibly, that she did not credit Defendant's testimony that Plaintiff had fabricated the incidents she testified to, and that she believes a basis exists for the entry of an order of protection against Defendant pertaining to Plaintiff.⁴⁴

Legal Analysis

A. Defendant's Responsive Pleading Must Be Disregarded.

[1] Defendant's Right To File Responsive Pleading

Initially, for the reasons set forth herein, this Court must reject the Defendant's Responsive Pleading. As artfully set forth in one Family Court decision, the procedure which governs proceedings commenced pursuant to the New York State Family Court Act (hereinafter "FCA") may also be subject to the procedures set forth within the New York State Civil Practice Law and Rules (hereinafter "CPLR"):

"Special proceedings are civil proceedings that are 'a hybrid between an action and a motion' (3 Weinstein—Korn—Miller NY Civ. Prac. ¶ 401.03 at 4—8 [2nd ed. 2005] ), 'in which a right can be established or an obligation enforced in summary fashion. Like an action, it ends in a judgment, but the procedure is similar to that on a motion' (Cruz v. T.D. Bank, N.A., 2014 WL 1569491 [S.D.N.Y.2014] [citation omitted] ).

Whether some or all of the proceedings within the jurisdiction of the Family Court constitute 'special proceedings' and are therefore be subject to the provisions of article 4 of the Civil Practice Law and Rules, including the rule that leave of court be obtained prior to serving a demand for disclosure (Civil Practice Law and Rules § 408), is an issue which has not been definitively resolved (see Lebedeff v. Lebedeff, 17 NY2d 557, 559, 268 N.Y.S.2d 323, 215 N.E.2d 506 [1966] [interstate support proceeding is special proceeding]; Matter of K.Z. v. P.M., 29 Misc 3d 572, 573, 906 N.Y.S.2d 724 [2010] [family offense is special proceeding]; Matter of E.T.N., 42 Misc 3d 526, 529, 977 N.Y.S.2d 632 [2013] [guardianship is a special proceeding] ).

Article 4 is a procedural statute that is intended to 'provide[ ] a uniform body of rules generally applicable to all special *508 proceedings' (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, Civil Practice Law and Rules § 401, C401:1 at 340 [West 2010]), but the Family Court Act specifically limits the applicability of the Civil Practice Law and Rules to those instances '[w]here the method of procedure in any proceeding in which the family court has jurisdiction is not prescribed' by the Family Court Act (Fam. Ct. Act § 165[a] ).

Moreover, in those situations where the Family Court Act does not provide specific a procedure the Civil Practice Law and Rules is to be applied only to the extent such procedure is 'suitable to the proceedings involved' (id.; see Matter of Suffolk County Department of Social Services [Michael V.] v. James M., 83 NY2d 178, 182, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994]; Matter of Yamoussa M., 220 AD2d 138, 141, 646 N.Y.S.2d 319 [1996]; Matter of Anthony M., 271 AD2d 709, 710, 705 N.Y.S.2d 715 [2000]; Matter of Geraldine Rose W., 196 AD2d 313, 317, 609 N.Y.S.2d 324 [1994], lv. dismissed 84 NY2d 967, 621 N.Y.S.2d 514, 645 N.E.2d 1213 [1994]; Matter of Bernal v. Bernal, 45 AD3d 589, 590, 844 N.Y.S.2d 717 [2007] ).

Without reaching a definitive conclusion as to whether Family Court proceedings are special proceedings, it is noted that the majority of the proceedings within Family Court's jurisdiction are governed by specific procedures which take precedence over the more general procedures set forth in the Civil Practice Law and Rules (see Fam. Ct. Act § 165[a]; Yamoussa M., 220 AD2d 138 at 141, 646 N.Y.S.2d 319; Matter of John H., 56 AD3d 1024, 1026, 868 N.Y.S.2d 790 [2008]; Matter of Deandre GG., 79 AD3d 1384, 1385, 912 N.Y.S.2d 801 [2010], lv. denied 16 NY3d 708, 2011 WL 1161017 [2011]; Sobie, Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A, Family Court Act § 165 at 144 [West 2008] [CPLR is clearly excluded when the **825 issue in question is addressed by the Family Court Act] )" (Carlos L. v. Sandy C., 51 Misc 3d 506 [Fam Ct Queens Cnty 2016]).

FCA § 821 speaks to family offense originating proceedings noting that, "A proceeding under this article is originated by the filing of a petition " and FCA § 825 notes, "On the filing of a petition under this article, the court may cause a copy of the petition and a summons to be issued, requiring the respondent to appear at court at a time and place to answer the petition."⁴⁵ While Article 8 of the FCA is silent as to any responsive pleadings a respondent in a family offense proceeding may file, in such instances where the petitioner seeks an order of protection, FCA § 154-b(1) permits the filing of an answer and counterclaims:

"In every proceeding under articles four, five, six and eight of this act in which an order of protection is requested, the respondent may file with the court an answer to the petition and a counter-claim. A counter-claim shall be heard in the same manner as a petition and may be heard on the return date of the petition, provided that the counter-claim is served on the petitioner no later than five days prior to the return date and said counter-claim and proof of service is filed with the court. The petitioner may file and serve a reply to the counter-claim. A denial of the allegations of the counter-claim shall be presumed if the petitioner does not file and serve a reply."

Moreover, as the FCA and CPLR must be read together when the FCA is silent as to a procedural issue, even when no order of protection is sought by the petitioner in a family offense proceeding, the respondent's right to file a responsive pleading lies in CPLR § 402 which provides the following:

"There shall be a petition, which shall comply with the requirements for a complaint in an action, and an answer where there is an adverse party. There shall be a reply to a counterclaim denominated as such and there may be a reply to new matter in the answer in any case. The court may permit such other pleadings as are authorized in an action upon such terms as it may specify."

This is further supported by CPLR § 103(b) which sets forth the following:

"Action or special proceeding. All civil judicial proceedings shall be prosecuted in the form of an action, except where prosecution in the form of a special proceeding is authorized. Except where otherwise prescribed by law, procedure in special proceedings shall be the same as in actions, and the provisions of the civil practice law and rules applicable to actions shall be applicable to special proceedings."

Accordingly, in this instance Defendant had the right to file a responsive pleading pursuant to both FCA § 154-b(1) as the petition seeks the entry of an order of protection and CPLR § 402, as there is no basis to find that the application of the above-referenced provisions of the CPLR pertaining to proceedings would not be suitable to the proceedings involved in the FCA. To the contrary, affording respondents in such proceedings with the ability to clearly set forth in writing their positions as to the serious allegations made against them would afford the litigants better due process and access to justice, while affording the reviewing court with further necessary information to make a sound determination as the outcome of these proceedings often have substantial impacts on the parties including, but not limited to, access to their children and homes. Therefore, in this instance, an order was entered permitting Defendant a deadline to submit a responsive pleading.

[2] Basis To Disregard Defendant's Responsive Pleading

As Defendant filed Defendant's Responsive Pleading after that deadline had passed, for this reason alone it could be disregarded as no request for late filing was made with a reasonable excuse for delay and meritorious defense to petition (see Puchner v. Nastke, 91 AD3d 1261 [3d Dept 2012]). However, further defects exist that would require it to be disregarded even if filed timely.

First, the document filed was not in the form of an answer as required by both FCA § 154-b(1) and CPLR § 402; see also CPLR § 3011. CPLR § 3018 sets forth the manner within which responsive pleadings are to be constructed:

"(a) Denials. A party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial. All other statements of a pleading are deemed admitted, except that where no responsive pleading is permitted they are deemed denied or avoided.

(b) Affirmative defenses. A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages as set forth in article fourteen-A, discharge in bankruptcy, facts showing illegality either by statute or common law, fraud, infancy or other disability of the party defending, payment, release, res judicata, statute of frauds, or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated."

In this instance, examination of Defendant's Responsive Pleading reflects that it is not constructed in the manner required by CPLR § 3018 as the lettered paragraphs, each inclusive of numbered statements, do not provide responses comporting with the factual allegations made by Plaintiff in her Petition. Moreover, while filed as an "affidavit or affirmation in opposition to motion", the document was neither in the form of an affidavit or affirmation (see CPLR §§ 2106; 2309).

Moreover, even in the event the document was in the form of an answer or even accepted as an affidavit or affirmation, the document was unsigned. Pursuant to the Uniform Rules for New York State Trial Courts (hereinafter "NYCRR"), specifically 22 NYCRR § 130-1.1a: "(a) Signature. Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party."

New York State Technology Law § 304 pertains to the use of electronic signatures:

"1. The electronic facilitator shall establish rules and regulations governing the use of electronic signatures and authentication. The electronic facilitator shall not establish rules or regulations that seek to apportion fault or impose or limit liability relating to the use of electronic signatures.

2. In accordance with this section unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand."

New York State Technology Law § 302(3) provides, "3. 'Electronic signature' shall mean an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record."

22 NYCRR § 202.5-b provides rules for electronic filing within the New York State Supreme Court:

"(a) Application. (1) On consent, documents may be filed and served by electronic means in Supreme Court in such civil actions and in such counties as shall be authorized by order of the Chief Administrator of the Courts and only to the extent and in the manner provided in this section.

* * *

(ii) NYSCEF shall mean the New York State Courts Electronic Filing System and the NYSCEF site shall mean the New York State Courts Electronic Filing System website located at www.nycourts.gov/efile;

* * *

(e) Signatures.

(1) Signing of a document. An electronically filed document shall be considered to have been signed by, and shall be binding upon, the person identified as a signatory, if:

(i) it bears the physical signature of such person and is scanned into an electronic format that reproduces such signature; or

(ii) the signatory has electronically affixed the digital image of his or her signature to the document; or

(iii) it is electronically filed under the User ID and password of that person; or

(iv) in a tax certiorari action in which the parties have stipulated to this procedure, it is an initiating document that is electronically filed without the signature of the signatory in a form provided above in this subparagraph, provided that, prior to filing, the document is signed in full in hard copy (which hard copy must be preserved until the conclusion of all proceedings, including appeals, in the case in which it is filed); or

(v) in a small claims assessment review proceeding, it is a petition recorded by the NYSCEF site upon the filing of a text file as provided in subdivision (b)(1) of this section, provided that prior to filing, the document was signed in full in hard copy (which hard copy must be preserved until the conclusion of all proceedings in the matter, including article 78 review and any appeals, and must be made available during the proceeding upon request of the respondent or the court); or

(vi) it otherwise bears the electronic signature of the signatory in a format conforming to such standards and requirements as may hereafter be established by the Chief Administrator."

Upon review of Defendant's Responsive Pleading, Defendant fails to provide a signature of any kind, written with wet ink or electronic, in violation of both 22 NYCRR § 130-1.1a; and, § 202.5-b, and similarly non-compliant with the definition of electronic signatures pursuant to New York State Technology Law § 302(3). Instead, Defendant appears to only provide the following "/s/" as a substitution for a purported signature, which fails to comply with either of the particular provisions of 22 NYCRR § 130-1.1a; and, § 202.5-b.

However, even if the document had been signed and were timely, as noted above, it was not in the form of an answer and to the extent it asserted evidentiary facts and defenses, it could not be considered. Based upon the foregoing, Defendant's Responsive Submission must be disregarded as it had not been filed.

[3] Defendant Admissions of Statements In Petition

As Defendant had the right to file a responsive pleading and failed to do so, all facts in Plaintiff's petition must be deemed admitted pursuant to CPLR § 3018(a):

"Denials. A party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial. All other statements of a pleading are deemed admitted, except that where no responsive pleading is permitted they are deemed denied or avoided" [emphasis added].

When presented with a case involving a petition having been served upon a respondent and no denials being made, the Court of Appeals provided the following analysis:

"The 'answer' of the Board was in narrative form and contained no denials of the specific allegations of the petition; rather it sought dismissal of the proceeding on the ground that no practical difficulty ***929 existed and that the difficulty, if any existed, was self-created.**8481 Under those circumstances, the statements in the petition, not having been denied, 'are deemed admitted' (CPLR 3018[a] ), for, as CPLR 103(b) makes clear, the procedure in special proceedings is the same as in actions and is governed by the CPLR provisions applicable to actions except as otherwise prescribed by law" (Human Development services of Port Chester, Inc. v. Zoning Bd. Of Appeals of Village of Port Chester, 67 NY2d 702 [1986]).

Accordingly, in continuing with the determination of the proceeding herein, this Court has found that Defendant has admitted all of the statements made within the instant petition.⁴⁶

B. Credibility Assessments.

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 (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]).

Based upon the direct observations of this Court during the hearing, it is determined that the Plaintiff is a credible witness. The Court makes this determination finding that Plaintiff testified clearly and offered answers to all questions presented to her in a responsive manner. As to Defendant, this Court determines that he lacks credibility due to his failure to provide clear responsive answers to the questions presented to him, and his shocking demeanor during the hearing which included laughing during Plaintiff's testimony that he had sexually and physically assaulted her, and interrupting her testimony on multiple occasions. Moreover, Defendant provided conflicting testimony, including initially testifying that he had not slept when taking care of the Child, and later confirming that he did in fact sleep during periods when he was caring for the Child.

C. Plaintiff's Family Offense Petition & Determinations As to Alleged Family Offenses and Request for Finding of Aggravated Circumstances.

"Among the purposes of a family offenses proceeding under Article 8 of the Family Court Act is to protect victims of domestic violence by providing 'a civil, non-criminal alternative to a criminal prosecution' (Besharov, Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A, Family Ct. Act § 812, at 181) when family members commit certain designated criminal offenses" (V.C. v. H.C., 257 AD2d 27 [1st Dept 1999]).

FCA § 812 sets forth the jurisdiction of the Family Court and Criminal Court by which family offense proceedings may be commenced, wherein a petitioner may assert that a respondent, who is a member of the same family or household, has engaged in violations of certain areas of the New York State Penal Law (hereinafter "Penal Law"). However, DRL § 252(1) provides that both the Supreme Court and Family Court shall entertain applications for orders of protection, and "Where a matrimonial action is pending in the Supreme Court, the Family Court continues to have jurisdiction over a family offense proceeding, although the Supreme Court in a matrimonial action may also adjudicate whether a spouse has committed a family offense" (Hassan v. Habib, 137 AD3d 910 [2d Dept 2016] [internal citations omitted]).The Supreme Court may also transfer to itself any proceedings commenced in the Family Court, consolidating such proceedings into those before it, in the event same are based on common questions of law and fact (see Morse v. Morse, 45 AD2d 370 [1st Dept 1974]; see also NYS Const. Art 6(1), Art. 7, Art. 19(a); CPLR § 602(a)).

A spouse may commence a family offense proceeding by filing a petition after which a summons and temporary order of protection may be issued (see FCA §§ 8721, 821-a, 822, 823, 825 and 828). The reviewing court will then hold a fact-finding hearing to determine if the allegations made within the petition are supported by a fair preponderance of the evidence, after which a disposition hearing is held to determine what disposition will be made and in many circumstances these hearings may be held concurrently (see FCA §§ 832, 833 and 835), during which only competent, material and relevant evidence may be admitted (see FCA § 834). After the dispositional hearing has concluded, an order of disposition may be entered pursuant to FCA § 841:

"(a) dismissing the petition, if the allegations of the petition are not established; or

(b) suspending judgment for a period not in excess of six months; or

(c) placing the respondent on probation for a period not exceeding one year, and requiring respondent to participate in a batterer's education program designed to help end violent behavior, which may include referral to drug and alcohol counseling, and to pay the costs thereof if respondent has the means to do so, provided however that nothing contained herein shall be deemed to require payment of the costs of any such program by the petitioner, the state or any political subdivision thereof; or

(d) making an order of protection in accord with section eight hundred forty-two of this part; or

(e) directing payment of restitution in an amount not to exceed ten thousand dollars. An order of restitution may be made in conjunction with any order of disposition authorized under subdivisions (b), (c), or (d) of this section. In no case shall an order of restitution be issued where the court determines that the respondent has already paid such restitution as part of the disposition or settlement of another proceeding arising from the same act or acts alleged in the petition before the court."

FCA § 872 sets forth the manner in which an order or protection may be entered, as well as the duration and possible provisions of such an order:

"An order of protection under section eight hundred forty-one of this part shall set forth reasonable conditions of behavior to be observed for a period not in excess of two years by the petitioner or respondent or for a period not in excess of five years upon (i) a finding by the court on the record of the existence of aggravating circumstances as defined in paragraph (vii) of subdivision (a) of section eight hundred twenty-seven of this article; or (ii) a finding by the court on the record that the conduct alleged in the petition is in violation of a valid order of protection. Any finding of aggravating circumstances pursuant to this section shall be stated on the record and upon the order of protection. The court may also, upon motion, extend the order of protection for a reasonable period of time upon a showing of good cause or consent of the parties. The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order. The court must articulate a basis for its decision on the record. The duration of any temporary order shall not by itself be a factor in determining the length or issuance of any final order. Any order of protection issued pursuant to this section shall specify if an order of probation is in effect. Any order of protection issued pursuant to this section may require the petitioner or the respondent:

(a) to stay away from the home, school, business or place of employment of any other party, the other spouse, the other parent, or the child, and to stay away from any other specific location designated by the court, provided that the court shall make a determination, and shall state such determination in a written decision or on the record, whether to impose a condition pursuant to this subdivision, provided further, however, that failure to make such a determination shall not affect the validity of such order of protection. In making such determination, the court shall consider, but shall not be limited to consideration of, whether the order of protection is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, extent of past or present injury, threats, drug or alcohol abuse, and access to weapons;

(b) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;

(c) to refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of this article, or any criminal offense against the child or against the other parent or against any person to whom custody of the child is awarded, or from harassing, intimidating or threatening such persons;

(d) to permit a designated party to enter the residence during a specified period of time in order to remove personal belongings not in issue in this proceeding or in any other proceeding or action under this act or the domestic relations law;

(e) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety or welfare of a child;

(f) to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order if such order is issued or enforced;

(g) to require the respondent to participate in a batterer's education program designed to help end violent behavior, which may include referral to drug and alcohol counselling, and to pay the costs thereof if the person has the means to do so, provided however that nothing contained herein shall be deemed to require payment of the costs of any such program by the petitioner, the state or any political subdivision thereof;

(h) to provide, either directly or by means of medical and health insurance, for expenses incurred for medical care and treatment arising from the incident or incidents forming the basis for the issuance of the order;

(i) 1. to refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household."

The term "aggravating circumstances" is defined in FCA § 827(vii) which provides the following:

"For the purposes of this section aggravating circumstances shall mean physical injury or serious physical injury to the petitioner caused by the respondent, the use of a dangerous instrument against the petitioner by the respondent, a history of repeated violations of prior orders of protection by the respondent, prior convictions for crimes against the petitioner by the respondent or the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner's family or household."

The Appellate Division, Second Department has held that of the five situations set forth in FCA § 827(vii) which may constitute aggravating circumstances, only the fifth requires the additional finding of "immediate and ongoing danger" (see Kondor v. Kondor, 109 AD3d 660 [2d Dept 2013]). A finding of aggravated circumstances has been determined appropriate upon the respondent having been found to exhibit "violent and harassing behavior" in the petitioner's presence (see Harry v. Harry, 85 AD3d 790 [2d Dept 2011] see also Reilly v. Reilly, 254 AD2d 361 [2d Dept 1998]); upon the respondent having inflicted physical injuries upon petitioner (see Liu v. Yip, 127 AD3d 1196 [2d Dept 2015]; see also Wright v. Wright, 4 AD3d 683 [2d Dept 2004]); and when record established that respondent had committed family offenses against petitioner in front of children (see Goikhman v. Biton, 183 AD3d 704 [2d Dept 2020]).

"It is well established that the party seeking an order of protection has the burden of establishing by a preponderance of the evidence that the party for which the order is seeking to restrain has committed the alleged family offense, and whether a family offense has been committed is a factual issue to be resolved by the court, and its determinations regarding the credibility of witnesses are entitled to great weight (see Susan WW. On Behalf of Karri-Ann WW. v Alan WW., 161 AD3d 1249 [3d Dept 2018]; see also Family Court Act § 812). "Where, as here, 'the court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination [should] not be disturbed unless clearly unsupported by the record' " (Straight v. Grant, 184 AD3d 647 [2d Dept 2020] quoting Mohammed v. Mohammed, 174 AD3d 615 [2d Dept 2019]).

Here, Plaintiff filed the instant petition commencing the Family Offense Proceeding as both the spouse of the Defendant and mother of the Child in the Family Court, which by order of this Court were consolidated into this action. The petition asserts that Defendant committed thirteen Alleged Family Offenses against Plaintiff, each of which will be reviewed in turn herein:

[1] Forcible Touching

Penal Law § 130.52 provides the following pertaining to the basis for a determination that a person has engaged in forcible touching:

"A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose:

1. forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire; or

2. subjects another person to sexual contact for the purpose of gratifying the actor's sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions.

For the purposes of this section, forcible touching includes squeezing, grabbing or pinching."

With respect to what constitutes forcible touching, the Court of Appeals has held that the acts of squeezing, grabbing or pinching included in the statute provides only examples as "when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52" (People v. Guaman, 22 NY3d 687 [2014]). As to the required purpose, which may fall into two categories, it has been held that "the inquiry as to whether a defendant was seeking sexual gratification can be inferred from his or her conduct" (People v. Fuller, 50 AD3d 1171 [3d Dept 2008]). The family offense of forcible touching was upheld when petitioner's testimony found to be credible established that respondent had forced petitioner into nonconsensual sexual relations (see Marta M. v. Gopal M., 212 AD3d 524 [1st Dept 2023]).

Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident Defendant engaged in the family offense of forcible touching against her as she credibly testified that Defendant placed his penis inside her for the purpose of seeking sexual gratification, as expressed through his words, conduct and ejaculation during the incident.

[2] Sexual Misconduct

Penal Law § 130.20 provides the following pertaining to the basis for a determination that a person has engaged in sexual misconduct:

"A person is guilty of sexual misconduct when:

1. He or she engages in vaginal sexual contact with another person without such person's consent; or

2. He or she engages in oral sexual contact with another person without such person's consent; or

3. He or she engages in anal sexual contact with another person without such person's consent; or

4. He or she engages in sexual conduct with an animal or a dead human body."

A finding that a respondent had engaged in the family offense of sexual misconduct was upheld based upon the testimony of the petitioner which sharply contrasted with that of respondent who testified that the sexual contact was consensual (see Stephanie r. v. Walter Q., 203 AD3d 1440 [3d Dept 2022]). Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident Defendant engaged in the family offense of sexual misconduct against her as she credibly testified that Defendant placed his penis inside her without her consent.

[3] Sexual Abuse in the Third Degree

Penal Law § 130.55 provides the following pertaining to the basis for a determination that a person has engaged in sexual abuse in the third degree:

"A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person."

The family offense of sexual abuse in the third degree may be supported by the testimony of petitioner and documentary evidence (see Israilova v. Israilov, 244 AD3d 1208 [2d Dept 2025]).

Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident, Defendant engaged in the family offense of sexual abuse in the third degree against her as she credibly testified that Defendant subjected her to sexual contact, including placing his penis inside her, without her consent.

[4] Harassment in the Second Degree

Penal Law § 240.26 provides the following pertaining to the basis for a determination that a person has engaged in harassment in the second degree:

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."

"The intent to commit harassment in the second degree is properly inferred from the appellant's threatening conduct and his abusive and intimidating language directed at the petitioner on December 20, 2016, and January 13, 2017, which frightened the petitioner and served no legitimate purpose" (Washington v. Washington, 158 AD3d 717 [2d Dept 2018]). The family offense of harassment in the second degree was upheld following petitioner testifying that respondent had engaged in physical contact with her and his intent to commit physical injury was inferred from his actions and surrounding circumstances (see Damineh M. v. Bedouin L.J., 225 AD3d 522 [2d Dept 2024]; see also People v. Conevey, 50 Misc 3d 1 [2d Dept App Term 2015]).

Here, the credible testimony of Plaintiff supports the determination that during the July 2026 Incident, Defendant engaged in the family offense of harassment in the second degree against her, as she credibly testified that Defendant struck her head with the intent to harass, annoy or alarm, with Defendant's intent being inferred from his conduct which served no legitimate purpose, and the surrounding circumstances as credibly testified to by Plaintiff, which included Defendant making threatening statements to her just prior to the physical contact.

[5] Harassment in the First Degree

Penal Law § 240.25 provides the following pertaining to the basis for a determination that a person has engaged in harassment in the first degree:

"A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury."

The crime of harassment in the first degree is not restricted to statements, but may also include conduct (see People v. Monroe, 183 Misc 2d 374 [Crim Ct NY Cnty 2000]). "Physical injury" is defined in the Penal Law as "impairment of physical condition or substantial pain" (Penal Law § 100.00(9). Speaking to what constitutes "course of conduct" in the statutes pertaining to menacing in the second degree and harassment in the first degree one court noted:

" 'The term 'course of conduct' may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.' People v. Tralli, 88 Misc 2d 117, 118, 387 N.Y.S.2d 37. See also People v. Payton, 161 Misc 2d 170, 612 N.Y.S.2d 815, 817 (N.Y.Co.Crim.Ct.1994). Defendant walked alongside the complainant to her office, barring her way when she sought to escape inside. He continued to stalk her as she retreated up the street, forcibly preventing her from obtaining assistance from the parked van. Finally, he grabbed her arm when she attempted to open the van door, and dragged her toward Central Park. Throughout this terrifying episode, the defendant made it clear that his purpose was to entice or, if necessary, compel the victim to go with him into Central Park.'

While defendant's conduct only lasted for five to eight minutes, neither PL Section 120.14(2) nor PL Section 240.25 requires that a 'course of conduct' be of any particular duration. Rather, as noted, it is the defendant's 'continuity of purpose' in engaging in acts which create a reasonable fear of physical injury that is the hallmark of these 'anti-stalking' statutes. People v. Tralli, supra. On this record, the jury was justified in finding that defendant both entertained and demonstrated such a continuity of purpose and that his actions created a reasonable fear of physical injury in the complaining witness. Accordingly, the evidence was legally sufficient to support defendant's conviction on these counts" (see People v. Murray, 167 Misc 2d 857 [Crim Ct NY Cnty 1995]).

A finding of harassment in the first degree was upheld when the defendant was found to have, over a period of time, subjected the victim to "two incidents of picking her up and throwing her, an incident of surrounding her, pursuing her, and forcibly taking her eyeglasses, and a final incident where appellant threatened the victim with physical harm while shaking an umbrella at her" (In re Kori W., 40 AD3d 479 [1st Dept 2007]).

Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident and July 2026 Incident, Defendant engaged in the family offense of harassment in the first degree against her as she credibly testified that Defendant repeatedly committed acts and in a course of conduct against her which reasonably placed her in fear of physical injury. Defendant's intent being inferred from his conduct which served no legitimate purpose and the surrounding circumstances as credibly testified to by Plaintiff.

[6] Aggravated Harassment in the Second Degree

Penal Law § 240.30 provides the following pertaining to the basis for a determination that a person has engaged in aggravated harassment in the second degree:

"A person is guilty of aggravated harassment in the second degree when:

1. With intent to harass another person, the actor either:

(a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household; or

(b) causes a communication to be initiated anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household; or

2. With intent to harass or threaten another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or

3. With the intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks, or otherwise subjects another person to physical contact, including removing a religious clothing article or headdress from such person, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or

3-a. With the intent to harass, annoy, threaten or alarm another person, such person strikes, shoves, kicks, or otherwise subjects another person to physical contact, which includes spitting on such other person, and such other person is a train operator, ticket inspector, conductor, signalperson, bus operator, station agent, station cleaner, terminal cleaner, station customer assistant, traffic checker; person whose official duties include the sale or collection of tickets, passes, vouchers, or other revenue payment media for use on a train, bus, or ferry or the collection or handling of revenues therefrom; a person whose official duties include the maintenance, repair, inspection, troubleshooting, testing or cleaning of buses or ferries, a transit signal system, elevated or underground subway tracks, transit station structure, including fare equipment, escalators, elevators and other equipment necessary to passenger service, commuter rail tracks or stations, train yard, revenue train in passenger service, a ferry station, or a train or bus station or terminal; or a supervisor of such personnel, employed by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions while such individual is performing an assigned duty; or

4. With the intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks or otherwise subjects another person to physical contact thereby causing physical injury to such person or to a family or household member of such person as defined in section 530.11 of the criminal procedure law; or

5. He or she commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years."

Physical injury will be found to exist in the instance where an individual is struck in the head and credibly testifies that their head ached (People v. Wheeler, 40 NY3d 925 [2023] ["The victim testified that defendant delivered a very hard blow to his face, that he felt pain, and that he experienced bleeding and swelling. Hospital records describe the victim's pain as 'aching' and indicate he was directed to take over-the-counter painkillers."]).

Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident and July 2026 Incident, Defendant engaged in the family offense of aggravated harassment in the second degree against her as she credibly testified that Defendant subjected Plaintiff to physical contact thereby causing her physical injury due to the substantial pain experienced by Plaintiff as a result as she credibly testified as causing ringing in her ear, had a great intensity and caused damage. Defendant's intent being inferred from his conduct which served no legitimate purpose and the surrounding circumstances as credibly testified to by Plaintiff.

[7] Menacing in the Second Degree

Penal Law § 120.14 provides the following pertaining to the basis for a determination that a person has engaged in menacing in the second degree:

"A person is guilty of menacing in the second degree when:

1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

2. He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or

3. He or she commits the crime of menacing in the third degree in violation of that part of a duly served order of protection, or such order which the defendant has actual knowledge of because he or she was present in court when such order was issued, pursuant to article eight of the family court act, section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued."

Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident and July 2026 Incident, Defendant engaged in the family offense of menacing in the second degree against her as she credibly testified that Defendant repeatedly committed acts and in a course of conduct against her which reasonably placed her in fear of physical injury. Defendant's intent being inferred from his conduct which served no legitimate purpose and the surrounding circumstances as credibly testified to by Plaintiff.

[8] Menacing in the Third Degree

Penal Law § 120.15 provides the following pertaining to the basis for a determination that a person has engaged in menacing in the third degree:

"A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury."

Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident and July 2026 Incident, Defendant engaged in the family offense of menacing in the third degree against her as she credibly testified that Defendant, by physical menace against her, reasonably placed her in fear of physical injury. Defendant's intent being inferred from his conduct which served no legitimate purpose and the surrounding circumstances as credibly testified to by Plaintiff.

[9] Attempted Assault in the Third Degree

Penal Law § 110.00 sets forth the following pertaining to attempt to commit a crime:

"A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime."

Penal Law § 120.00 provides the following pertaining to the basis for a determination that a person has engaged in assault in the third degree:

"A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument."

The family offense of attempted assault in the third degree has been upheld upon "a finding that he acted with the intent "to cause physical injury" to the sister when he slammed the door while the sister's hand was in the doorway" (see McClean v. McClean, 212 AD3d 624 [2d Dept 2023]).

Here, the credible testimony of Plaintiff supports the determination that during the June 2026 Incident and July 2026 Incident Defendant engaged in the family offense of attempted assault in the third degree against her as she credibly testified that Defendant attempted to cause physical injury to her with his intent being inferred from his conduct which served no legitimate purpose and the surrounding circumstances as credibly testified to by Plaintiff which included Defendant making threatening statements to her just prior to the physical contact.

[10] Assault in the Third Degree

The family offense of assault in the third degree was upheld following a petitioner having testified that respondent had physically struck her causing her pain (see Yanis C. v. Daniel R., 176 AD3d 407 [1st Dept 2019]).

Here, the credible testimony of Plaintiff supports the determination that during the July 2026 Incident Defendant engaged in the family offense of assault in the third degree as Plaintiff credibly testified that during the incident Defendant caused physical injury to her with his intent being inferred from his conduct which served no legitimate purpose and the surrounding circumstances as credibly testified to by Plaintiff which included Defendant making threatening statements to her just prior to the physical contact.

[11] Assault in the Second Degree

Penal Law § 120.05 provides the following pertaining to the basis for a determination that a person has engaged in assault in the second degree:

"A person is guilty of assault in the second degree when:

1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or

2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or

3. With intent to prevent a peace officer, a police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, a firefighter, including a firefighter acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such firefighter, an emergency medical service paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, a traffic enforcement officer, traffic enforcement agent or employee of any entity governed by the public service law in the course of performing an essential service, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activity of such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician, city marshal, school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, traffic enforcement officer, traffic enforcement agent or employee of an entity governed by the public service law, he or she causes physical injury to such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician or medical or related personnel in a hospital emergency department, city marshal, school crossing guard, traffic enforcement officer, traffic enforcement agent or employee of an entity governed by the public service law; or

3-a. With intent to prevent an employee of a local social services district directly involved in investigation of or response to alleged abuse or neglect of a child, a vulnerable elderly person or an incompetent or physically disabled person, from performing such investigation or response, the actor, not being such child, vulnerable elderly person or incompetent or physically disabled person, or with intent to prevent an employee of a local social services district directly involved in providing public assistance and care from performing his or her job, causes physical injury to such employee including by means of releasing or failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activities of such employee; or

3-b. With intent to prevent an employee of the New York city housing authority from performing his or her lawful duties while located on housing project grounds, real property, or a building owned, managed, or operated by such authority he or she causes physical injury to such employee; or

3-c. With intent to prevent an employee providing direct patient care, who is not a nurse pursuant to title eight of the education law, whose principal employment responsibility is to carry out direct patient care for one or more patients in any hospital, nursing home, residential health care facility, general hospital, government agency including any chronic disease hospital, maternity hospital, outpatient department, emergency center or surgical center under article twenty-eight of the public health law, from performing a lawful duty, he or she causes physical injury to such employee providing direct patient care; or

4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

4-a. He recklessly causes physical injury to another person who is a child under the age of eighteen by intentional discharge of a firearm, rifle or shotgun; or

5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or

6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or

7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person; or

9. Being eighteen years old or more and with intent to cause physical injury to a person less than seven years old, the defendant causes such injury to such person; or

10. Acting at a place the person knows, or reasonably should know, is on school grounds and with intent to cause physical injury, he or she: (a) causes such injury to an employee of a school or public school district; or (b) not being a student of such school or public school district, causes physical injury to another, and such other person is a student of such school who is attending or present for educational purposes. For purposes of this subdivision the term "school grounds" shall have the meaning set forth in subdivision fourteen of section 220.00 of this chapter; or

11. With intent to cause physical injury to a train operator, ticket inspector, conductor, signalperson, bus operator, station agent, station cleaner, terminal cleaner, station customer assistant, traffic checker; person whose official duties include the sale or collection of tickets, passes, vouchers, or other revenue payment media for use on a train, bus, or ferry the collection or handling of revenues therefrom; a person whose official duties include the maintenance, repair, inspection, troubleshooting, testing or cleaning of buses or ferries, a transit signal system, elevated or underground subway tracks, transit station structure, including fare equipment, escalators, elevators and other equipment necessary to passenger service, commuter rail tracks or stations, train yard, revenue train in passenger service, a ferry station, or a train or bus station or terminal; or a supervisor of such personnel, employed by any transit or commuter rail agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions, a city marshal, a school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, a traffic enforcement officer, traffic enforcement agent, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, sanitation enforcement agent, New York city sanitation worker, public health sanitarian, New York city public health sanitarian, registered nurse, licensed practical nurse, emergency medical service paramedic, or emergency medical service technician, he or she causes physical injury to such train operator, ticket inspector, conductor, signalperson, bus operator, station agent, station cleaner, terminal cleaner, station customer assistant, traffic checker; person whose official duties include the sale or collection of tickets, passes, vouchers or other revenue payment media for use on a train, bus, or ferry or the collection or handling of revenues therefrom; a person whose official duties include the maintenance, repair, inspection, troubleshooting, testing or cleaning of buses or ferries, a transit signal system, elevated or underground subway tracks, transit station structure, including fare equipment, escalators, elevators and other equipment necessary to passenger service, commuter rail tracks or stations, train yard, revenue train in passenger service, a ferry station, or a train or bus station or terminal; or a supervisor of such personnel, city marshal, school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, traffic enforcement officer, traffic enforcement agent, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, emergency medical service paramedic, or emergency medical service technician, while such employee is performing an assigned duty on, or directly related to, the operation of a train or bus, cleaning of a train or bus station or terminal, assisting customers, checking traffic, the sale or collection of tickets, passes, vouchers, or other revenue media for use on a train, bus, or ferry or maintenance or cleaning of a train, a bus, a ferry, or bus station or terminal, signal system, elevated or underground subway tracks, transit station structure, including fare equipment, escalators, elevators and other equipment necessary to passenger service, commuter rail tracks or stations, train yard or revenue train in passenger service, a ferry station, or such city marshal, school crossing guard, traffic enforcement officer, traffic enforcement agent, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, emergency medical service paramedic, or emergency medical service technician is performing an assigned duty; or

11-a. With intent to cause physical injury to an employee of a local social services district directly involved in investigation of or response to alleged abuse or neglect of a child, vulnerable elderly person or an incompetent or physically disabled person, the actor, not being such child, vulnerable elderly person or incompetent or physically disabled person, or with intent to prevent an employee of a local social services district directly involved in providing public assistance and care from performing his or her job, causes physical injury to such employee; or

11-b. With intent to cause physical injury to an employee of the New York city housing authority performing his or her lawful duties while located on housing project grounds, real property, or a building owned, managed, or operated by such authority he or she causes physical injury to such employee; or

11-c. With intent to cause physical injury to an employee providing direct patient care, who is not a nurse pursuant to title eight of the education law, whose principal employment responsibility is to carry out direct patient care for one or more patients in any hospital, nursing home, residential health care facility, general hospital, government agency including any chronic disease hospital, maternity hospital, outpatient department, emergency center or surgical center under article twenty-eight of the public health law, he or she causes physical injury to such employee providing direct patient care while such employee is performing a lawful duty; or

12. With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person; or

13. Being confined to a secure treatment facility, as such term is defined in subdivision (o) of section 10.03 of the mental hygiene law, and with intent to cause physical injury to an employee of such secure treatment facility performing his or her duties, he or she causes such injury to such person; or

14. With intent to prevent or obstruct a process server, as defined in section eighty-nine-t of the general business law, from performing a lawful duty pursuant to article three of the civil practice law and rules, or intentionally, as retaliation against such a process server for the performance of the process server's duties pursuant to such article, including by means of releasing or failing to control an animal evincing the actor's intent that the animal prevent or obstruct the lawful duty of the process server or as retaliation against the process server, he or she causes physical injury to such process server."

Here, no testimony or evidence presented at hearing provided support for a determination that Defendant engaged in conduct that constituted the family offense of assault in the second degree against Plaintiff.

[12] Reckless Endangerment

Penal Law § 120.20 provides the following pertaining to the basis for a determination that a person has engaged in reckless endangerment in the second degree:

"A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person."

The term "serious physical injury" as used in the Penal Law is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." "It is simply the risk of physical injury that is necessary to establish the reckless endangerment" (In re Shaniqua W., 262 AD2d 496 [2d Dept 1999]).

Here, no testimony or evidence presented at hearing provided support for a determination that Defendant engaged in conduct that constituted the family offense of reckless endangerment in the second degree against Plaintiff.

[13] Sexual Abuse in the Second Degree (Subdivision 1)

Penal Law § 130.60 provides the following pertaining to the basis for a determination that a person has engaged in sexual abuse in the second degree:

"A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

1. Incapable of consent by reason of some factor other than being less than seventeen years old; or

2. Less than fourteen years old."

Subdivision 1 of this statute refers to sexual abuse of an individual incapable of consent which is defined pursuant to Penal Law § 130.05 including those who are "(b) mentally disabled; or (c) mentally incapacitated; or (d) physically helpless " "Mentally disabled" is defined in Penal Law § 130.00(5) as "a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct." "Mentally incapacitated" is defined in Penal Law § 130.00(6) as "a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent." "Physically helpless" is defined in Penal Law § 130.00(7) as "a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act."

Here, no testimony or evidence presented at hearing provided support for a determination that Defendant engaged in conduct that constituted the family offense of sexual abuse in the second degree (subdivision 1) against Plaintiff.

Based upon the foregoing determinations made as to numerous family offenses found to have been committed against Plaintiff by Defendant, in the presence or vicinity of the Child, this Court determines the existence of aggravating circumstances. In making this determination this Court finds that Defendant has exposed Plaintiff to physical injury and like incidents, behaviors and occurrences which to this Court constitute an immediate and ongoing danger to the Plaintiff and the Child.

D. Order of Disposition.

Based upon the foregoing determinations made as to numerous family offenses found to have been committed against Plaintiff by Defendant, in the presence or vicinity of the Child, as well as this Court's determination as to the existence of aggravating circumstances, the following is hereby directed:

[1] Order of Protection Against Defendant For Benefit of Plaintiff

Simultaneous with the entry of this Decision, an order of protection shall be entered against Defendant and for the benefit of Plaintiff, directing for a period of five years the Defendant shall:

Stay away from the Plaintiff, the home of the Plaintiff, the school of Plaintiff, the place of employment or business of the Plaintiff, including, but not limited to, the real property known as [Redacted];

Refrain from communication or any other contact with Plaintiff by mail, telephone, e-mail, voice-mail or other electronic or any other means;

Refrain from remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of the protected person(s) by connection through any means, including, but not limited to, the internet, Bluetooth, a wired or wireless network, or other wireless technology;

Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against Plaintiff; and

Surrender any and all handguns, pistols, revolvers, rifles, shotguns and other firearms owned or possessed and do not obtain any further guns or other firearms. Such surrender shall take place immediately, but not later than October 2, 2026, at the [Redacted] Police Department, [Redacted].

[2] Order of Protection Against Defendant For Benefit of Child

"Although respondent's violence was directed toward petitioner, it occurred a number of times in the presence of the child; thus the inclusion of the child in the order is warranted (see Family Court Act § 827[a][vii]; Matter of Pei—Fong K. v. Myles M., 94 AD3d 675, 943 N.Y.S.2d 467 [1st Dept. 2012]; see also Matter of Charlene J.R. v. Walter A.M., 307 AD2d 1038, 763 N.Y.S.2d 778 [2nd Dept. 2003])" (Coumba F. v. Mamdou D., 102 AD3d 634 [1st Dept 2013]).

Here, Plaintiff credibly testified that the June 2026 Incident took place with the Child being present in the adjoining room placing the Child in close proximity to the sexual assault taking place against Plaintiff by Defendant, exposing the Child to the possibility of witnessing these acts. Similarly, Plaintiff credibly testified that the July 2026 Incident took place with the Child being present as she was on the floor between the parties when Defendant physically struck Plaintiff. As noted in Coumba F., Supra, while in this instance Defendant's violence was directed at Plaintiff, both incidents Plaintiff credibly testified to at hearing were in the presence of the Child warranting her inclusion in an order of protection.

Simultaneous with the entry of this Decision, an order of protection shall be entered against Defendant and for the benefit of the Child, directing for a period of five years the Defendant shall:

Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against the Child.

E. Other Relief.

To the extent any relief requested has not been granted or otherwise addressed herein it is hereby denied.

ACCORDINGLY, IT IS HEREBY:

ORDERED that Plaintiff's Petition is hereby granted as set forth herein; and it is further

ORDERED that two orders of protection shall be entered simultaneously with the entry of this decision as set forth herein; and it is further

ORDERED that by October 29, 2026, Plaintiff's counsel shall serve Defendant, via overnight delivery, with a copy of this Decision and Order with a Notice of Entry, and by that date shall file with the Court a copy of same with proof of service; and it is further

ORDERED that by October 29, 2026, Plaintiff's counsel shall serve the attorney for the Child, via NYSCEF filing, with a copy of this Decision and Order with a Notice of Entry, and by that date shall file with the Court a copy of same with proof of service; and it is further

ORDERED that any relief requested not expressly granted herein is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: September 28, 2026

White Plains, New York

ENTER:

Hon. James L. Hyer, J.S.C.

FOOTNOTES

1.    See, NYSCEF Doc. No. 1.

2.    See, NYSCEF Doc. No. 2.

3.    See, NYSCEF Doc. Nos. 4-5.

4.    See, NYSCEF Doc. No. 10.

5.    See, NYSCEF Doc. No. 33.

6.    See, NYSCEF Doc. No. 33, 5/26/26 Transcript, Pg. 2:14-25-Pg. 3-15.

7.    See, NYSCEF Doc. No. 33, 5/26/26 Transcript, Pg. 3:16-25-Pg. 4:1-19; see also, NYSCEF Doc. Nos. 15 & 16.

8.    See, NYSCEF Doc. No. 33, 5/26/26 Transcript, Pg. 30:22-25-Pg. 31:1-5.

9.    See, NYSCEF Doc. No. 33, 5/26/26 Transcript, Pg. 32:25-Pg. 34-1-3.

10.    See, NYSCEF Doc. Nos. 20 & 21; Note: The preliminary conference order included on Page 2 the following directive, "Within 24 hours of commencing Family Court proceedings, counsel/self-represented party shall notify this Court by letter, copied to the adversary, with file #, docket #."

11.    See, NYSCEF Doc. No. 60; Note: Following consolidation of the Family Offense Proceeding with this action, the Family Court Clerk forwarded the entire file pertaining to the proceeding to the part of the undersigned which was then filed as one NYSCEF document in this action.

12.    See, NYSCEF Doc. No. 60.

13.    See, NYSCEF Doc. No. 60.

14.    See, NYSCEF Doc. No. 60.

15.    See, NYSCEF Doc. Nos. 37-40.

16.    See, NYSCEF Doc. No. 41.

17.    See, NYSCEF Doc. Nos. 44 & 48.

18.    See, NYSCEF Doc. No. 53.

19.    See, NYSCEF Doc. No. 58.

20.    See, NYSCEF Doc. No. 59.

21.    See, NYSCEF Doc. No. 60.

22.    See, NYSCEF Doc. No. 72.

23.    See, NYSCEF Doc. No. 73.

24.    See, NYSCEF Doc. Nos. 74-86; 88.

25.    See, NYSCEF Doc. Nos. 89-90.

26.    See, NYSCEF Doc. No. 102.

27.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 2:10-24.

28.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 35:7-22.

29.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 35:23-25-Pg. 36:1-15.

30.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 68:4-8.

31.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 68:9-25-Pg. 69:1-22.

32.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 56:18-25-Pg. 57:1-9.

33.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 67:20-25.

34.    See, NYSCEF Doc. No. 102, Hearing Transcript, Pg. 36:19-25-Pg. 39:1-18.

35.    See, NYSCEF Doc. No. 97.

36.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 58:2-25.

37.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 41:14-24.

38.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 49:7-25-Pg. 50:1-23.

39.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 87:11-13.

40.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 92:22-25.

41.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 87:15-25.

42.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 100:3-25-Pg. 104:1-18.

43.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 8-18.

44.    See, NYSCEF Doc. No. 102: Hearing Transcript, Pg. 104:20-25-Pg. 105:1-5.

45.   Note: FCA § 825 does not indicate how the respondent may answer the petition filed in a family offense proceeding, only when they are to "answer", requiring review of other portions of the FCA and CPLR to obtain further clarification.

46.   Note: Even without having found that the rejection of Defendant's Responsive Pleading warranted a determination that Defendant admitted to the statements made within Plaintiff's Petition, the Court's determination made herein-below would have remained the same, due to the testimony and evidence presented at hearing.

James L. Hyer, J.