SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

683 

CAF 11-00771 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ. 

 

IN THE MATTER OF PAUL D. MARQUARDT, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

URSULA M. MARQUARDT, RESPONDENT-APPELLANT. 

 

CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.

 

Appeal from an order of the Family Court, Genesee County (Eric R.

Adams, J.), entered March 14, 2011 in a proceeding pursuant to Family

Court Act article 8. The order, insofar as appealed from, found that

respondent had committed a family offense. 

It is hereby ORDERED that the order insofar as appealed from is

reversed on the law without costs and the amended petition is

dismissed. 

Memorandum: Respondent wife appeals from an “Order of FactFinding and Disposition” in which Family Court concluded that she

committed acts constituting the family offense of harassment in the

first or second degree against petitioner husband (Family Ct Act § 812

[1]; Penal Law §§ 240.25, 240.26 [3]). Initially, we note that the

order of protection issued in conjunction with the order on appeal has

expired, and we thus generally would dismiss the appeal as moot (see

Matter of Kristine Z. v Anthony C., 43 AD3d 1284, 1284-1285, lv denied

10 NY3d 705). Here, however, respondent challenges only Family

Court’s finding that she committed a family offense and, “ ‘in light

of enduring consequences which may potentially flow from an

adjudication that a party has committed a family offense,’ the appeal

from so much of the order . . . as made that adjudication is not

academic” (Matter of Hunt v Hunt, 51 AD3d 924, 925). 

With respect to the merits, the court concluded that respondent

committed a family offense by engaging in acts that would constitute

either first or second degree harassment “by cutting open [her] pills

on the counter, knowing that the Petitioner has allergies” to

medications. We agree with respondent that the evidence is not

legally sufficient to establish that she committed a family offense. 

“A petitioner bears the burden of proving by a preponderance of the

evidence that respondent committed a family offense” (Matter of

Chadwick F. v Hilda G., 77 AD3d 1093, 1093-1094, lv denied 16 NY3d

703). Although harassment in the first or second degree is a family

offense (see Family Ct Act § 812 [1]), and we afford great deference
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to the court’s determination of credibility (see Matter of Gray v

Gray, 55 AD3d 909, 909; Matter of Wallace v Wallace, 45 AD3d 599), we

conclude that petitioner failed to establish by a preponderance of the

evidence that respondent engaged in acts constituting either offense. 

Thus, the court erred in failing to dismiss the amended petition (see

generally Matter of Woodruff v Rogers, 50 AD3d 1571, 1571-1572, lv

denied 10 NY3d 717). 

To establish that respondent committed acts constituting

harassment in the second degree, petitioner was required to establish

that respondent engaged in conduct that was intended to harass, annoy

or alarm petitioner, that petitioner was alarmed or seriously annoyed

by the conduct, and that the conduct served no legitimate purpose (see

Penal Law § 240.26 [3]; Matter of Ebony J. v Clarence D., 46 AD3d 309;

Matter of Cavanaugh v Madden, 298 AD2d 390, 392). Even assuming,

arguendo, that petitioner was alarmed or seriously annoyed by the

conduct of respondent in opening her medicine to eat it with pudding

based on her inability to swallow the pills, and further assuming,

arguendo, that respondent thereby intended to harass, annoy or alarm

him, we conclude that petitioner failed to establish that the conduct

served no legitimate purpose (see generally Chadwick F., 77 AD3d at

1094; Matter of Charles E. v Frank E., 72 AD3d 1439, 1441; Matter of

Eck v Eck, 44 AD3d 1168, 1169, lv denied 9 NY3d 818). Indeed,

petitioner testified that respondent took the medication as prescribed

to prevent acid reflux, and that respondent opened the pills and ate

the medication with food because she was unable to swallow the pills. 

With respect to petitioner’s allegation that he was allergic to

certain medications, he failed to establish that he was allergic to

the particular medication taken by respondent, or to introduce any

expert evidence in support of his testimony that the medication was “a

poison, a toxic poison that causes death.”

Similarly, petitioner failed to establish that respondent’s acts

constituted harassment in the first degree. That statute requires,

inter alia, that the perpetrator commit “acts which place[ another

person] in reasonable fear of physical injury” (Penal Law § 240.25). 

Even assuming, arguendo, that petitioner was in fear of physical

injury when respondent opened her medication, we conclude for the

reasons set forth above that he failed to establish that his fear was

reasonable. 

All concur except MARTOCHE, J., who dissents and votes to affirm

in the following Memorandum: I respectfully dissent, and would affirm

the order insofar as appealed from. In my view, petitioner husband

established by a preponderance of the evidence that respondent wife

committed a family offense, and I agree with the majority that Family

Court’s finding that she did so is not academic despite the fact that

the underlying order of protection has expired (see Matter of Hunt v

Hunt, 51 AD3d 924, 925). Preliminarily, I note that, in this

proceeding, respondent filed an amended petition in which she accused

petitioner of engaging in acts against her that constituted disorderly

conduct, harassment, aggravated harassment and attempted assault. The

relevant acts included one incident in which petitioner screamed at

respondent and ripped apart her rosary beads, and a second incident
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CAF 11-00771 

when, while calling respondent names, petitioner struck respondent

with a door upon opening it and then tried to rip the door off its

hinges. Petitioner in turn filed an amended family offense petition

against respondent, alleging that she committed the family offenses of

reckless endangerment, harassment and menacing. Specifically,

petitioner alleged that on several occasions respondent opened

capsules of controlled substances in his presence on eating surfaces

in the kitchen even though he had informed her that he was allergic to

the controlled substances. Petitioner further alleged that, despite

his repeated protests, respondent continued to open the capsules in

his presence. The court considered both amended petitions at the

fact-finding hearing. The only witnesses were the parties and their

relatives. The court granted stay away orders of protection against

each party, which expired in March 2012. The court found that

respondent “engaged in conduct constituting harassment in that she

with the intent to harass or to alarm or annoy the petitioner did

after being asked to refrain from doing so cut open medications on a

kitchen counter where food is prepared with knowledge that . . . the

petitioner has allergies to certain medications and would be annoyed

and alarmed by the respondent continuing to engage in such conduct.” 

The court also found that petitioner committed the family offense of

disorderly conduct, when he slammed the basement door with sufficient

force to damage the door frame “in such a manner to frighten and alarm

the [respondent],” and that petitioner committed another family

offense of disorderly conduct, when he admittedly destroyed

respondent’s rosary beads without justification. The court stated in

its decision that “ninety percent of the testimony” at the hearing was

“utter nonsense” and warned the parties that it would “not waste

another entire day listening to what [it] consider[ed] to be inane

blather” if either party violated the orders of protection. In a

previous appeal by petitioner, this Court affirmed the order

determining, inter alia, that he committed a family offense against

respondent (Matter of Marquardt v Marquardt, 94 AD3d 1436). 

In my view, the court’s “assessment of the credibility of the

witnesses is entitled to great weight” (Matter of Scroger v Scroger,

68 AD3d 1777, 1778, lv denied 14 NY3d 705). This case in particular

is appropriate for application of our general rule deferring to the

findings made by Family Court after the court has made credibility

determinations. Here, the parties chose to avail themselves of the

judicial system for acts that otherwise did not warrant police

intervention. The majority concludes that petitioner failed to

establish that respondent’s conduct served no legitimate purpose with

respect to harassment in the second degree. I cannot agree with that

conclusion. Petitioner testified that, while respondent may have

needed to take her medication, she did not need to take her medication

on eating surfaces in the kitchen and did so despite his objections to

her conduct. The majority further concludes that petitioner failed to

establish that he was allergic to the particular medication taken by

respondent, but his testimony that he had allergies to the medications

was credited by the court and I see no reason to disturb that factual

determination. Similarly, the majority concludes that, with respect

to harassment in the first degree, petitioner failed to establish that

his fear of physical injury from respondent opening her medication was
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CAF 11-00771 

reasonable. The testimony of petitioner established, however, that he

was allergic to many medicines and that he was fearful of ingesting

respondent’s medications. 

Finally, in my view, the court disposed of both amended petitions

together, as evidenced by the fact that it issued mutual orders of

protection. The parties obviously were antagonistic toward each

other, and the court made findings with respect to the actions of each

party against the other. Further, the court warned the parties that

it regarded the family offense petitions as relatively minor. I agree

with the court’s admonition to the parties that they should not use

the judicial system to resolve domestic disputes that are not of a

serious nature. Certainly, the “crimes” committed by both parties

were minor and did not require police intervention. I see no reason

to disturb the court’s credibility determinations with respect to

petitioner’s amended petition, just as we determined in petitioner’s

prior appeal that “[t]he court’s ‘assessment of the credibility of the

witnesses is entitled to great weight’ ” (Marquardt, 94 AD3d 1436).

Entered: July 6, 2012 Frances E. Cafarell

Clerk of the Court