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Tammy J.H. v. John W.H.

42 A.D.3d 974 Court N.Y. App. Div. Decision date 2007-07-06 English

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p. 974
In the Matter of Tammy J.H., Respondent, v John W.H., III, Appellant.
[837 NYS2d 892]

Appeal from an order of the Family Court, Jefferson County (Peter A. Schwerzmann, J.), entered July 24, 2006 in a proceeding pursuant to Family Court Act article 8. The order of protection directed respondent to observe certain conditions of behavior.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 alleging that respondent committed acts that constitute harassment in the second degree pursuant to Penal Law § 240.26 (3). Family Court erred in granting the petition because petitioner failed to meet

p. 975
her burden at the fact-finding hearing of establishing by a fair preponderance of the evidence that respondent committed the underlying acts (see Family Ct Act §§ 832, 834; see also People v Wood, 59 NY2d 811 [1983]). Present — Gorski, J.E, Martoche, Lunn, Peradotto and Pine, JJ.

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