Matter of Tonya B. v Matthew B.

Matter of Matter of Tonya B. v Matthew B. 2011 NY Slip Op 08829 Decided on December 8, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2011
Andrias, J.P., Saxe, Sweeny, Acosta, Manzanet-Daniels, JJ.
6263

[*1]In re Tonya B., Petitioner-Respondent,

v

Matthew B., Respondent-Appellant.




Elisa Barnes, New York, for appellant.
Dora M. Lassinger, East Rockaway, for respondent.

Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about December 17, 2009, which, upon a finding that respondent Matthew B. committed the family offense of attempted assault, granted the petition for an order of protection against respondent for two years subject to court-ordered visitation with the parties' child, unanimously affirmed, without costs.

There exists no basis to disturb the court's determination that petitioner credibly testified that respondent attempted to assault her (see Matter of Everett C. v Oneida P., 61 AD3d 489 [2009]). Her testimony and the photographs of the bruises on her arm support the finding of attempted assault by a fair preponderance of the evidence (Family Court Act § 812; § 832).

Respondent waived his right to a dispositional hearing, as he did not demand, or object to the court's failure to hold, such
a hearing (see Matter of Hazel P.R. v Paul J.P., 34 AD3d 307 [2006]). Rather, respondent proceeded to settle his visitation petition immediately after the court granted the stay away order and, over petitioner's objection, was granted the requested visitation rights. No apparent purpose would be achieved in convening a disposition hearing, given that respondent was granted liberal visitation rights, and the order of protection requires that he stay away only from petitioner, and not his child (see id.).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2011

CLERK