Matter of Doreen L. v Dhaneswar R., 2011 NY Slip Op 07696 [89 AD3d 428]

November 1, 2011

Appellate Division, First Department

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Julian A. Hertz, Larchmont, for appellant.

Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), attorney for the children.

Order, Family Court, Bronx County (Andrea Masley, J.), entered on or about August 9, 2010, which, after a fact-finding hearing, granted respondent father’s motion to deny the petition for an order of protection, and dismissed the proceeding brought pursuant to article 8 of the Family Court Act, unanimously affirmed, without costs.

Family Court correctly found that petitioner failed to establish by a fair preponderance of competent evidence that respondent committed acts warranting an order of protection in her favor ( see Family Ct Act §§ 832, 834). Petitioner argued before Family Court that she offered her testimony about the content of her conversation with an alleged hired assassin to show her state of mind. Accordingly, we decline to review the arguments, raised for the first time on appeal, that petitioner’s testimony should have been admitted for its truth under an exception to the hearsay rule ( see Matter of Patricia H. v Richard H. , 78 AD3d 1435 , 1437 [2010]). However, petitioner’s testimony, coupled with the in camera statements made by two of the parties’ children in a related article 6 proceeding, provided good cause for Administration for Children’s Services to conduct a child protective investigation pursuant to Family Ct Act § 1034 (1) (b). Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Richter, JJ. [Prior Case History: 29 Misc 3d 462.] Motion to file untimely respondent’s brief denied..