Matter of L.N. v G.N.R.
Annotate this CaseDecided on May 11, 2009
Family Court, Orange County
In the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act, L.N. o/b/o S.R. and G.C.R., Petitioner,
against
G.N.R., Respondent.
O-00729-09
Sol Lesser, Esq.
Attorney for Respondent
Silver, Forrester, Schisano, Lesser and Dreyer
3250 Route 9W
New Windsor, New York 12553
Carla S. Wise, Esq.
Attorney for Petitioner
60 Erie Street
Goshen, New York 10924
Cheryl E. Maxim, Esq.
Attorney for Children
213 West Main Street
P.O. Box 1002
Goshen, New York 10924
Debra J. Kiedaisch, J.
The respondent father has filed a motion seeking to dismiss the above captioned family offense petition filed by the mother on behalf of herself and the parties' two minor children in Family Court. In her petition the mother, who has received a stay away order of protection on her behalf against the father from criminal court, seeks, among other things, an order of protection that the father refrain from committing a family offense against her and an order of protection directing the father to stay away from the parties' children. The petition alleges, among other things, that father was convicted of arson in 2007 for burning down "the petitioner's home" (impliedly also the home of the parties' children) in which a family pet was killed. The petition, and an affidavit by the mother in opposition to the father's motion to dismiss the petition, alleges the father was recently released from incarceration and intentionally moved into the town and community in which the mother and children are living with the intent to alarm or harass the children. The mother alleges the father has contacted the children by letters and that the children are traumatized by the father's past acts and fearful of the prospect of having physical contact with the father such that they remain on the home porch, rather than bus stop, each morning waiting for the school bus. The mother alleges she is unsure of the father's stability and what he's capable of doing in view of his past conduct in burning down the home.
The father moves to dismiss the petition by submission of an affirmation by his attorney which sets forth that the petition fails to allege any underlying predicate criminal violation such as harassment in the first or second degree upon which a Family Court Act family offense proceeding may be brought (FCA 812; Penal Law 240.25; Penal Law 240.26). The affirmation alleges when the father committed the arson the father knew the home was under contract of sale and vacant, and that the father knew the mother and children were residing at another location. The affirmation makes no reference to the family pet which the mother alleges was killed in the fire. The affirmation alleges, inter alia, the petition fails to allege the elements of harassment in the second degree stating "there are no legitimate allegations the [father] engaged in a course of [*2]conduct or repeatedly committed acts which alarm or seriously annoy another person which serve no legitimate purpose; while intending to harass or alarm another person" (Penal Law 240.26[3]). The affirmation alleges the father's writing letters to the children is his attempt to "reconnect" and re-establish a relationship with the parties' children. The affirmation alleges that while the father was incarcerated he wrote to the children with the approval of the mother. The affirmation notes the father has filed a visitation proceeding in Family Court in which he openly seeks visitation with the children.
This is a motion directed to the facial sufficiency of the pleading. The motion papers allege the petition fails to allege various necessary allegations, in effect, to sustain a family offense claim or cause of action which must be based on a violation of certain statutes in the penal law (FCA 812[1]). Where a motion is brought to dismiss a pleading for facial insufficiency and failure to state a viable cause of action the court is required to assume the truthfulness of the facts alleged in the pleading and to search the entire pleading as to whether a claim cognizable in law for any relief is stated (Nastasi v. Nastasi, 26 AD3d 32, 37; Embee Advice Establishment v. Holtzmann, Wise & Shepard, 191 AD2d 194)). Upon such motion, the pleading is to be liberally construed so as to afford the pleader every possible favorable inference on the basis of the facts alleged (Johnson City Cent. School Dist. v. Fidelity and Deposit, 263 AD2d 580 citing Leon v Martinez, 84 NY2d 83, 87; Rovello v Orofino Realty Co., 40 NY2d 633, 635). A court may consider affidavits submitted by the pleader to remedy defects in the petition (Rovello v Orofino Realty Co. , 40 NY2d 633, 635). It is further noted that to the extent the father's attorney's affirmation makes factual allegations of which the attorney does not possess personal knowledge, such affirmation is of no probative value (Zuckerman v. City of New York, 49 NY2d 557).
Upon review of the petition and the motion papers, the allegations of the petition including that the father burned down petitioner's home sets forth a cause of action for an order of protection based on harassment in the second degree. The nature of such acts as alleged in the petition including the arson gives rise to a possible inference of an intent on the part of the father to harass, alarm, or seriously annoy family members - the petitioners, who at one time or another apparently resided and lived in such home. The pleadings and motion papers indicate the father has been incarcerated for at least some period since the commission of the arson. Therefore, the inference arises that the father has not been at liberty to freely act since the events surrounding the arson of 2007. Thus, the allegations of the petition permit the possible inference that the father continues to harbor the same mind set as he did when he committed the arson in 2007. While the father argues that no course of conduct or repeated commission of acts [constituting harassment] have been alleged, apparently, meaning without stating that the arson was a single act, it has been held that a single conscious act may meet the "course of conduct" element of the harassment in the second degree statute (People v. Tralli, 88 Misc 2d 117, cited with approval by Matter of Jamar S., 250 AD2d 856 [N.Y.A.D. 2 Dept.]). Under the circumstances, it cannot be determined without a hearing that the events alleged in the petition, including the arson related events of 2007, are not relatively contemporaneous to the present time and that the father may not pose an "imminent and ongoing danger" to his family (In re Ashley P., 31 AD3d 767).
In deciding the motion the court does not make any determination as to the truth of any allegations of the petition or any defenses, thereto. Such determination can only be made after [*3]plenary hearing.
Accordingly, it is hereby
ORDERED that the father's motion to dismiss the petition is denied.
Dated: Goshen, New YorkENTER
May 11, 2009
Hon. Debra J. Kiedaisch, J.F.C.
TO:
Sol Lesser, Esq.
Attorney for Respondent
Silver, Forrester, Schisano, Lesser and Dreyer
3250 Route 9W
New Windsor, New York 12553
Carla S. Wise, Esq.
Attorney for Petitioner
60 Erie Street
Goshen, New York 10924
Cheryl E. Maxim, Esq.
Attorney for Children
213 West Main Street
P.O. Box 1002
Goshen, New York 10924
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