New York Law Journal "Woman Wins Bar on Ex Spouse's Move to Dwelling Behind Hers"
Supreme Court Justice Matthew F. Cooper (See Profile) enjoined defendant Jay Weiner from living in the Hideout, a private enclave in the Pocono Mountains, after Mr. Weiner signed a lease for a home abutting his ex-wife's vacation house.
"The major issue before the court is whether it has the power to issue a new order of protection where the ex-husband has had no contact with his ex-wife—and has made no effort to contact or communicate with her—but has simply rented a house in close proximity to her," Justice Cooper wrote in Weiner v. Weiner, 350829/98.
The Manhattan Supreme Court decision appears on page 42 of the print edition of today's Law Journal.
The judge found the defendant's action was in fact sufficient for issuing the order, concluding, "[Under] the circumstances presented here—where the ex-husband has literally positioned himself on the edge of his ex-wife's back lawn in a wooded and relatively sparsely populated rural [area]—there is no question that defendant's move…represents only the latest chapter in an extended and ongoing effort to inflict suffering on plaintiff for her having fled the marriage. Such conduct cannot be allowed to continue."
Manhattan Supreme Court Justice Laura Visitacion-Lewis (See Profile) terminated that right in July 2007, citing Mr. Weiner's violation of the stipulation's no-molestation clause. The Appellate Division, First Department, upheld Justice Visitacion-Lewis' decision in November 2008, citing Mr. Weiner's "egregious" behavior.
Justice Visitacion-Lewis also issued a two-year order of protection barring Mr. Weiner from going to the Hideout.
As described by Justice Cooper, "A short walk through the woods would bring [Mr. Weiner] to the edge of [Ms. Weiner's] back lawn where he could stand and stare into her home—under the cover of darkness or hidden by the trees—seeing what she is doing, what she is wearing, who she is with."
In an 18-page decision yesterday, Justice Cooper granted the motion, holding that Ms. Weiner established by a preponderance of the evidence that Mr. Weiner's actions constituted the family offense of fourth-degree stalking, and therefore gave rise to an order of protection.
"In making this finding, I am aware that there are no reported cases where a violation of P.L. §120.45 has been predicated largely on the offender moving into a specific area or community," Justice Cooper wrote. However, he added, "Defendant is in every sense of the word a stalker who has 'unacceptably intruded' on his victim. As such, he continues to pose a real and ongoing danger to plaintiff's safety and well-being. Accordingly, the court will grant her application for a final order of protection that will require him to not only stay away from her but to stay away from the Hideout."
"Although the order of protection that the court is granting plaintiff eliminates much of the need for the relief sought pursuant to the no-molestation clause, plaintiff is still entitled to an order directing defendant to cure his breach," Justice Cooper wrote. "Accordingly, an order will be entered enforcing the no-molestation clause by directing defendant not to enter the Hideout and to cease renting or otherwise occupying any house or other residence therein."
"This means that it will expire on April 5, 2030," Justice Cooper wrote. "By then defendant will be 85 years old and, one would hope, no longer pose a threat to his ex-wife."
The judge also awarded Ms. Weiner attorney's fees.
"The judge has finally given credibility and strict enforcement with financial repercussions for continued violations of a non-molestation clause," Mr. Mirotznik said.