Dayan v. Dayan

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Kings County (Sunshine, J.), dated April 23, 2013, which, after a hearing, granted the plaintiffs motion for an order of protection. Ordered that the order is affirmed, without costs or disbursements. We agree with the defendant that his appeal from the order at issue, which granted the plaintiffs motion for an order of protection based upon the finding, after a hearing, that he had committed the family offenses of disorderly conduct and harassment in the second degree, has not been rendered academic by reason of the expiration of a contemporaneously issued order of protection (see Matter of Veronica P. v Radcliff A., 24 NY3d 668 [2015]). Furthermore, the defendant correctly contends that the Supreme Court erred in concluding that he committed the family offense of disorderly conduct, as the testimony credited by the court was insufficient to establish, by a preponderance of *750 the evidence, that his conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or harm (see Penal Law § 240.20; People v Baker, 20 NY3d 354, 359 [2013]; Matter of Shiffman v Handler, 115 AD3d 753, 753-754 [2014]; Matter of Martinez v Aviles, 112 AD3d 719 [2013]; Matter of Cassie v Cassie, 109 AD3d 337, 342 [2013]). However, the Supreme Court properly concluded that the plaintiff proved by a preponderance of the evidence that the defendant committed the family offense of harassment in the second degree, and thereupon properly granted the motion for an order of protection (see Penal Law § 240.26; Matter of Monos v Monos, 123 AD3d 931 [2014]; Matter of Martinez v Aviles, 112 AD3d at 720; Matter of Hodiantov v Aronov, 110 AD3d 881, 882 [2013]; see also Matter of Konstatine v Konstatine, 107 AD3d 994, 994-995 [2013]). Mastro, J.P., Dickerson, Cohen and LaSalle, JJ., concur.