MARCH 16, 2022 DECISIONS

Yinuo Yin v. Xiao Feng Qiao, 2021-00733

The lower court properly denied that branch of the plaintiff’s motion which was for an award of pendente lite maintenance, without prejudice, since she failed to attach a statement of net worth to her motion papers (see 22 NYCRR 202.16[k][2]; Barton v. Barton, 137 AD3d 723, 724).

The lower court erred in granting the defendant’s cross motion to impose sanctions upon the plaintiff’s attorney to the extent of directing the plaintiff to pay $2,000.  The defendant’s cross motion sought sanctions against the plaintiff’s attorney.  Based on the record, the actions of the plaintiff’s attorney were “neither completely without merit in law nor undertaken primarily to harass or maliciously injure.”  The court should have denied the motion pursuant to 22 NYCRR 130-1.1 to impose sanctions against the plaintiff’s attorney.

 

Matter of Marin v. Banasco, 2021-03083

In July 2019, the mother filed a family offense petition against the father alleging, among other things, that on June 9, 2019, in the presence of the child, the father smacked the mother’s phone out of her hand and threatened to hurt her.  She also alleged that on July 2, 2019, the father appeared at a scheduled custody exchange intoxicated, which resulted in him being “kicked out” of the police station where the exchange was planned to occur.  After a hearing, in an order of fact-finding and disposition, the Family Court determined that the father had committed the family offenses of harassment in the second degree and menacing in the third degree during the first incident, and disorderly conduct relating to his actions in the second incident.  The court directed the father to comply with an order of protection issued that same day against him in favor of the mother, for a period not to exceed two years.  The father appealed from the order of fact-finding and disposition.

The evidence failed to demonstrate that the father committed the family offense of menacing in the third degree (Penal Law § 120.15).  There was insufficient evidence that the father’s conduct on June 9, 2019, was intended to place the petitioner in fear of death, imminent serious physical injury, or physical injury, by physical menace (see Matter of Kalyan v. Trasybule, 189 AD3d 1046, 1048; Matter of Saquipay v. Puzhi, 160 AD3d 879, 880; Matter of Ashley C., 59 AD3d 715, 715-716).

However, a fair preponderance of the evidence supported the findings that the father committed the family offenses of harassment in the second degree (Penal Law § 240.26[1]; see Matter of Washington v. Washington, 158 AD3d 717, 718) and disorderly conduct (see Matter of Kiani v. Kiani, 134 AD3d 1036, 1037-1038).