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New York Law Journal

Ex-Husband Barred From Renting Home Behind Former Wife's Vacation House
April 14, 2010

A Manhattan judge has granted a 20-year order of protection barring a retired Manhattan math teacher from renting a home "on the edge of his ex-wife's back lawn" in a gated Pennsylvania community.

Supreme Court Justice Matthew F. Cooper 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 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."

Plaintiff Edie Weiner, a political trend analyst, filed for divorce from Mr. Weiner in 1998. Under the terms of the couple's October 2000 settlement stipulation, Mr. Weiner received the right to the exclusive use of Ms. Weiner's house in the Hideout, a 3,000-home planned community, for 10 weeks each year, through 2013.

Manhattan Supreme Court Justice Laura Visitacion-Lewis terminated that right in July 2007, citing Mr. Weiner's violation of the stipulation's no-molestation clause. The Appellate Division, 1st Department, upheld Justice Visitacion-Lewis' decision in November 2008, citing Mr. Weiner's "egregious" behavior.

Visitacion-Lewis also issued a two-year order of protection barring Mr. Weiner from going to the Hideout.

The very day that Justice Visitacion-Lewis' order expired, July 30, 2009, Mr. Weiner rented a house in the Hideout directly behind Ms. Weiner's home.

As described by 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."

Ms. Weiner again moved for an order barring her ex-husband from entering the Hideout.

Mr. Weiner opposed the motion, arguing that he had a constitutional right to live wherever he wished.

In an 18-page decision Tuesday, 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. ยง120.45 has been predicated largely on the offender moving into a specific area or community," 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."

The judge also cited Mr. Weiner's violation of the stipulation settlement's non-molestation clause as grounds for barring him 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," 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."

Noting that Mr. Weiner signed the lease to the rental home the day the previous order of protection expired, the judge set a 20-year term for the new order.

"This means that it will expire on April 5, 2030," 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 fees.

Ms. Weiner's attorney, solo-practitioner Charles M. Mirotznik, said the decision gave "teeth" to non-molestation clauses.

"The judge has finally given credibility and strict enforcement with financial repercussions for continued violations of a non-molestation clause," Mirotznik said.

Mr. Weiner's attorney, David Portnoy, said his client is considering an appeal.

By Mark Fass