FAMILY OFFENSE ORDER HAS EFFECT OF EVICTION WHEN NECESSARY AND APPROPRIATE

MATTER OF WEBSTER v. LARBOUR, 2022 NY Slip Op 4333 - NY: Appellate Div., 3rd Dept. 2022:

"Petitioner (hereinafter the wife) and respondent (hereinafter the husband) were married in August 2019. Subsequently, in April 2020, the wife filed a family offense petition alleging that the husband had committed harassment in the first or second degree based upon allegations that, on numerous occasions between July 2019 and April 2020, the husband had engaged in stalking, threatening and abusive behavior. Family Court issued a temporary order of protection, after which the wife filed several violation petitions alleging that the husband came to the residence and continued to contact her despite the order of protection. Following a fact-finding hearing, Family Court found that the husband had committed the family offenses of harassment in the first and second degrees, and granted two of the mother's violation petitions. Consequently, the Court issued a final order of protection in favor of the mother and her child.^[1]

The husband's primary argument on appeal is that the wife utilized the subject Family Court proceeding to circumvent the eviction moratorium instituted as a result of the COVID-19 pandemic. More specifically, the husband contends that the wife's brother, who owns the residence where the husband and the wife had been jointly residing, wanted to evict the husband but was unable to do so due to the eviction moratorium and, to get around that, the wife agreed to orchestrate the instant proceeding. However, the husband made this very claim during his direct testimony, yet Family Court nevertheless found the wife's allegations of the husband's harassing behavior and multiple violations of the order of protection to be credible, and the court's credibility determinations are accorded great weight on appeal (see Matter of Stephanie R. v Walter Q., 203 AD3d 1440, 1440-1441 [2022]; Matter of Allen v Emery, 187 AD3d 1339, 1340 [2020]). Upon review of the hearing evidence — which demonstrated that the husband pushed the wife, threw a glass ornament at her and also engaged in intimidating behavior including following her and threatening to disclose intimate photos of her to her employer and the father of her child — we are satisfied that the wife established, by a fair preponderance of the evidence, that the husband committed the family offenses of harassment in the first and second degrees (see Matter of Stephanie R. v Walter Q., 203 AD3d at 1442; Matter of Michele OO. v Kevin PP., 161 AD3d 1248, 1249 [2018]). As for the husband's assertion that Family Court should have considered his poor health and the fact that he had nowhere else to live before issuing a final order of protection barring him from the residence, the record reveals that this argument was presented to and considered by Family Court, but the court ultimately determined that the order of protection was necessary and appropriate, and we discern no error in that regard.

Contrary to the husband's further argument, we find that he has not been deprived of the right to meaningful appellate review as a result of an incomplete hearing transcript. Although it appears from the transcript and accompanying log that, due to an audio equipment malfunction in Family Court, a portion of the cross-examination and all of the redirect examination of the husband were not recorded, the husband's full direct examination, including the testimony he gave concerning his theory as to the wife's motivation for commencing the proceeding, is contained in the record for our review. As for the missing cross-examination and redirect examination, the husband has not identified the substance of this testimony, nor has he demonstrated its importance or relevance to the issues he now raises on appeal. As such, we find that the "missing information is neither material to the determination nor of such significance as to preclude meaningful review" (Matter of Borrero v Goord, 268 AD2d 853, 854 [2000] [internal quotation marks and citation omitted]; see Matter of Sessoms v Commissioner of Correctional Servs., 63 AD3d 1400, 1400 [2009]).

Egan Jr., J.P., Lynch, Pritzker and Fisher, JJ., concur.

ORDERED that the amended order is affirmed, without costs.

[1] The wife's child is not the biological child of the husband." 

CONSEQUENCE OF NOT SEEKING PROTECTIVE ORDER PROMPTLY

A delay in seeking justice can result in a denial of justice.

ALROSE STEINWAY, LLC v. JASPAN SCHLESINGER, LLP, 2021 NY Slip Op 30620 - NY Co: Supreme Court March 5, 2021:

"CPLR 3103 provides that "[t]he court may ... make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. Such order shall be designated to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."

Here defendants fail to meet their burden of proving that the attorney-client privilege was not waived. Even assuming that the attorney-client privilege attached to the 2/9 Email, the privilege was waived by defendants' failure to wait until November 27, 2019 to file an OSC seeking a protective order, 10 months after learning of the alleged inadvertent disclosure.

It is the burden of "the proponent of the privilege to prove that the privilege was not waived." (New York Times Newspaper Div. of N.Y. Times Co. v Lehrer McGovern Bovis., 300 AD2d 169, 172 [1st Dept 2002] [citation omitted].) For instance, "[d]isclosure of a privileged document generally operates

as a waiver of the privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer under prejudice if a protective order against use of the document is issued."

(Id. [citations omitted] [emphasis added].) Again, "assuming that such a privilege existed, it was waived by the defendants' lack of due diligence." (Koramblyum v Medvedovsky, 19 AD3d 651, 652 [2d Dept 2005] [citations omitted].) After plaintiff refused to return the 2/9 Email, defendants waited an unreasonable 10 months to take any action to remedy the situation. Even after this court expressly welcomed defendants to bring an OSC in March 2019, which they could have filed at any time after learning of the disclosure, still no action was taken to remedy the situation until November 2019. The lack of defendants' due diligence to remedy the disclosure of this document cannot be ignored, and thus, any existing privilege was waived."