Matter of Ayarira B. v Sandra E.

[*1] Matter of Ayarira B. v Sandra E. 2017 NY Slip Op 51421(U) Decided on October 27, 2017 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2017
Family Court, Queens County

In the Matter of Family Offense Proceeding, Ayarira B. and O/B/O Josiah B., Eden-Rose B., Petitioner,

against

Sandra E., Respondent.



O-12685-17



For Petitioner: Ayarira B., Pro Se

For Respondent: Hopkins & Kopilow, by Nicholas F. Miraglia, Esq.
John M. Hunt, J.

PROCEDURAL HISTORY

On June 22, 2017, Ayarira B. (hereinafter "Ms. B.") filed a family offense petition against her sister, the only named respondent, Sandra E. (hereinafter "Ms. E.").[FN1] In her petition, Ms. B. alleged that during an incident that occurred on the previous day, she and her husband, Richard B. (hereinafter "Mr. B."), were "assaulted" by a third party, Ms. E.'s brother-in-law, Eduardo H.-J. (hereinafter "Mr. H.-J."). The petition also alleges that Mr. and Ms. B. had been receiving threatening text messages from another third party, Javier P. (hereinafter "Mr. P.").[FN2] The petition's only allegation against the Respondent, Ms. E., is that she refused to return Ms. B.'s [*2]"house deeds." Although such an act is not a family offense,[FN3] Ms. B.'s petition states that an assistant district attorney advised the Petitioner to come to family court to get an order of protection against Ms. E..

Ms. B. appeared for the first time on her petition on June 23, 2017, the day after it was filed. She appeared ex parte before a referee of this court as her sister, the Respondent, Ms. E., had not yet been served with process and was thus unaware that her sister, the Petitioner, was petitioning the family court to take immediate legal action against her. After a nine minute proceeding before the referee, a temporary order of protection was issued against Ms. E. in absentia based solely on Ms. B.'s ex parte claims that "house deeds" were withheld. The order of protection was issued for a period of over a month so that it would be in effect until it expired on the next scheduled court date of July 24, 2017. A summons to be served by the sheriff was also issued directing Ms. E. to appear on that same date.

On July 24, 2017, both sisters were present in court before another judge of this court. The Petitioner, Ms. B., appeared without counsel and, for the first time, indicated that she intended to hire her own lawyer and needed time to do so. The Respondent, Ms. E., on the other hand, had already hired a lawyer who was with her in court and who argued correctly that Ms. B.'s petition was jurisdictionally defective since the facts alleged in it failed to state a family offense. Notwithstanding the solid basis in law for counsel's oral motion to dismiss, the assigned judge refused to entertain his motion despite its obvious merits. The assigned judge cited the Petitioner's request for an adjournment to appear with a lawyer as the sole reason for doing so. The assigned judge also refused, for the same reason, to entertain counsel's request that no further temporary order of protection be issued. Instead, a new temporary order of protection was issued that continued the terms of the original ex parte order despite the Respondent's appearance with a lawyer and a proper legal argument on her behalf.[FN4]

The case was then adjourned to August 24, 2017, and ultimately assigned to this Court. On August 24, 2017, the Respondent, Ms. E., and her attorney again appeared; however, the Petitioner, Ms. B., did not. This Court thereupon dismissed the petition on two grounds, failure to state a cause of action and failure to prosecute.

DISCUSSION

There is no question that Ms. B. and Ms. E. are sisters, and that their biological relationship satisfies the jurisdictional requirements of New York State Family Court Act § [*3]812(1)(e). However, Ms. B.'s petition clearly does not allege that Ms. E. committed any family offenses against her and her husband. Rather, Ms. B.'s petition alleges that two non-respondents, Ms. E.'s brother-in-law, Mr. H.-J., and another unidentified individual, Mr. P., committed family offenses against Ms. B. and her husband. A person claiming that a family offense has occurred must allege that the respondent behaved in a way that constitutes an act delineated within Family Court Act § 812. See NY Fam. Ct. Act § 812(1) (McKinney's 2017). Ms. B.'s only allegation against Ms. E. is that she refused to return Ms. B.'s house deeds which Ms. B. claims Ms. E. stole from her approximately six months prior to the filing of the petition. The rest of the allegations in the petition are too attenuated from Ms. E. as there are no allegations that she directed Mr. H.-J.'s and Mr. P.'s alleged conduct. Thus, Ms. B.'s allegations do not rise to the level of a family offense. See e.g. M.T. v. E.T., 18 Misc 3d 418, (Nassau Cty. Fam. Ct. Nov. 26, 2007) (finding petitioner's panoply of allegations failed to rise to level of family offenses). Accordingly, Ms. B.'s family offense petition is dismissed for failure to allege a family offense against Ms. E..

Ms. B.'s family offense petition is also dismissed for failure to prosecute. See NY C.P.L.R. § 3216 (McKinney's 2017). Ms. B. was in court when the August 24, 2017 court date was chosen. Even though she was aware of the date, she did not come. Ms. B. did not seek an adjournment from the Court, or communicate in any way with the Court regarding her absence. Ms. E. told the Court that she knew that Ms. B. was not going to be present because the parties' mother had told her that her sister would not be there. Thus, the Court deems Ms. B.'s failure to appear to be her failure to prosecute. An order of protection in this case is neither necessary or appropriate, and all orders are hereby vacated.

The procedural posture of this case is truly a travesty, and this case is far from the exception. Ms. B. wasted the Court's time and resources to secure her sister's appearance in court with counsel[FN5] and forced Ms. E. to hire an attorney to defend the groundless family offense petition lodged against her. After Ms. E. retained an attorney and took the time to come to court, Ms. B. chose not to appear. Ms. B.'s failure to be present for a court appearance which her petition initiated, cost her sister additional expense, and squandered further court time and resources. Notably, in the Domestic Violence Pedigree Sheet, which Ms. B. completed, Ms. B. refers to Ms. E. as her tenant, a fact not stated in her petition. Thus, Ms. B. filed a family offense petition against her sister which was more properly addressed in a different forum. One can only assume this was done since it is clearly more expeditious to allege family offenses against a relative than to commence other types of legitimate litigation to achieve a similar result.

Moreover, a temporary order of protection was issued against Ms. E. without her being present and hearing only Ms. B.'s side of the story. After Ms. E. was served and became aware of its existence, she was left vulnerable to its abuse and left to wonder what impact its issuance might have on her.

Ex parte orders of protection are not unusual. Family Court Act §828(3) authorizes what in practice becomes the routine issuance of such orders based on "good cause." NY Fam. Ct. Act §828(3) (McKinney's 2017); see also Mueller v. Mueller, 96 AD3d 948, 949 (2d Dep't 2012); [*4]Taub v. Taub, 94 AD3d 901, 902 (2d Dep't 2012). Ex parte orders of protection are commonplace in such circumstances, largely due to the amorphous "good cause" standard to be applied, the volume of pro se petitions filed, the limited information available to, and perhaps, what is arguably an overabundance of caution by, those who issue them. Such proceedings challenge traditional notions of due process. See Mueller, 96 AD3d at 949; see also Taub, 94 AD3d 901 at 902. Due process requires vigilance for both sides, and the Family Court should stress vigilance on behalf of respondents as well as petitioners in family offense matters.

"Given the possibly extreme repercussions to the respondent, the lack of statutory due process following the issuance of an ex parte temporary order is both surprising and troubling. There is no provision for the respondent to subsequently contest the order (Section 844, which provides for the "reconsideration and modification" of a final disposition, does not encompass temporary orders). Courts nevertheless often reconsider and modify temporary orders, including the ex parte variety, a measure which is arguably constitutionally required. It would be preferable to amend Article 8 to mandate the reconsideration of at least ex parte orders upon motion of the respondent, with the right to an evidentiary hearing in appropriate contested cases."

Sobie, Practice Commentary, McKinney's Laws of NY, Book 29A, Family Court Act §828, at 287 (West 2010).

This is certainly not the first time the Court has seen a family offense petition, devoid of basis in law, move forward of its own momentum. Doubtless, it will not be the last. In fact, Family Court Act § 216-c(b) provides that "[n]o clerk of the court ... may prevent any person who wishes to file a petition from having such petition filed with the court immediately." Fam. Ct. Act § 216-c(b) (McKinney's 2017). The busy and overburdened family court must, therefore, accept filings regardless of their merits. Even where jurisdictional questions arise, the clerk of the family court is directed to file the petition and refer it for judicial determination of all issues, including jurisdiction. See Fam. Ct. Act § 216-c (b) (McKinney's 2017). The state of the law, coupled with the family court's failure to require filing fees, actually enables those with a personal gripe of any sort to come to family court to resolve their issues - even when those issues fall completely outside of the court's jurisdiction.

The Court is mindful that "public policy generally mandates free access to the courts." Scott v. Powell, 146 AD3d 964, 966 (2d Dep't 2017); Graham v. Rawley, 145 AD3d 721, 722-23 (2d Dep't 2016). However, unbridled access to the courts served no legitimate purpose in this case, which is by no means unique. Even in patently frivolous cases, there is no permissible sanction since family offense proceedings are specifically excluded from such consideration. See 22 N.Y.C.R.R. § 130-1.1 ("This Part shall not apply to ... proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act."). Moreover, aggrieved parties have no immediate remedy against their accusers since the filing of a civil case, without more, "is not legally considered process capable of being abused." E.g. Goldman v. Citicore I, LLC, 149 AD3d 1042, 1044-045 (2d Dep't 2017) (abuse of process requires proof of intent to do harm without excuse or justification and use of process in a "perverted manner to obtain a collateral objective"); 71 Pierrepont Assos. v. 71 Pierrepont Corp., 243 AD2d 625, 626(2d Dep't 1997) (same).

It is troubling to this Court that the law itself may allow litigants, such as Ms. B., to [*5]misuse the family court process with impunity.[FN6] Family Court's open door filing framework allows the filing of petitions which, on their face, fail to establish a cause of action and encourage "serial filers"[FN7] whose repeated, meritless petitions add to this Court's exceptionally large caseload[FN8] that otherwise involves challenging and emotional family issues.[FN9] It would seem to this Court that there must be a way to identify meritless petitions at the outset so that valuable judicial resources are not wasted and so that an individual is not summoned to court unnecessarily, as Ms. E. was here, and put through the expense of hiring a lawyer to defend against allegations that were clearly beyond this Court's jurisdiction.[FN10] Doing so would increase the availability of court time for cases that are actually within this Court's jurisdiction. Until then, the opportunities for individual litigants to misuse the Family Court will abound.

This constitutes the decision, opinion, and order of the Court.

Dated: October 27, 2017

Jamaica, New York

JOHN M. HUNT, JUDGE

FAMILY COURT - QUEENS COUNTY Footnotes

Footnote 1: See Family Offense Petition (B., 06/22/17), Queens County Family Court Docket Number O-12685/17.

Footnote 2: The petition does not explain how Mr. P. is connected to the petitioner or her husband.

Footnote 3: At best, it is an allegation of criminal possession of stolen property, which is not one of the enumerated offenses contained in the Family Court Act. See NY Fam. Ct. Act §812 (McKinney's 2017). In truth, that allegation describes a civil dispute over property, not a crime.

Footnote 4: Notwithstanding the parties' statutory right to counsel in this case, the Petitioner failed to exercise that right even though she was both aware of it and able to hire her own lawyer. This Court is unaware of any rule of law that so prioritizes a Petitioner's right to counsel over a Respondent's right to due process that a Family Court judge in these circumstances could not consider dismissing the petition as facially insufficient. Even if the Petitioner were entitled to a further adjournment to obtain a lawyer to argue in favor of her petition, she had no right to the automatic issuance of a new order of protection that effectively continued the terms of her original ex parte order.

Footnote 5: The clerk's office assisted Ms. B. in the preparation of her petition, a family court referee heard her case during its initial appearance, an order of protection was drafted and issued in Ms. B.'s favor, and the sheriff's office was utilized to serve Ms. E..

Footnote 6: Equally troubling is the time honored use of the Family Court as a default referral by city agencies. The Court notes that New York State Family Court Act § 812(3) provides that no court official or law enforcement official "shall discourage or prevent any person who wishes to file a petition or sign a complaint from having access to any court for that purpose." NY Fam. Ct. Act § 812(3) (McKinney's 2017). Over the course of this Court's twenty-one year judicial career, countless litigants have stated that a police officer, an employee of a city agency and, in one recent case, the Internal Revenue Service, told them that they could not help them and directed those litigants to Family Court to solve problems beyond this court's jurisdiction.

Footnote 7: Scott v. Powell, 146 AD3d 964, 966 (2d Dep't 2017)

Footnote 8: The Administrate Judge of the New York City Family Courts, "explained to PIX11 [in an interview] how her court system works, with 56 Family Court Judges handling 250,000 filings every year." See Mary Murphy, Death of 6-year-old highlights dangers within child welfare system

Footnote 9: Save the family court's only recourse, and only when faced with repeated meritless petitions, of ordering that prior court approval is required for future filings, the family court is powerless to prevent this misuse of process. See Graham v. Rawley, 145 AD3d 721, 722 (2d Dep't 2016) (In visitation matter, upholding family court's decision to enjoin mother from filing future motions, petitions or supplemental petitions).

Footnote 10: These unsuspecting respondents must take time off from work to appear, retain counsel, and be bound by an order of protection premised on baseless allegations because the family court may not deny access to their court, even where warranted.