Matter of Jones v Jones

Matter of Jones v Jones 2017 NY Slip Op 03179 Decided on April 26, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 26, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
ROBERT J. MILLER
BETSY BARROS, JJ.
2016-08644
(Docket No. O-17177-15)

[*1]In the Matter of Atina Walton Jones, appellant,

v

Ralph Jones, respondent.

Warren S. Hecht, Forest Hills, NY, for appellant.

Francis P. Chery, East Meadow, NY, for respondent.

DECISION & ORDER

Appeal by the mother from an order of the Family Court, Kings County (Alan Beckoff, J.), dated August 2, 2006. The order, without a hearing, dismissed the mother's family offense petition for failure to state a cause of action.

ORDERED that the order is reversed, on the law, without costs or disbursements, the mother's family offense petition is reinstated, and the matter is remitted to the Family Court, Kings County, for further proceedings on that petition.

The mother filed a family offense petition alleging that, on a specific date, the father, inter alia, struck the subject child. The petition further alleged that on another specific date the father, among other things, slammed the child's head into a wall and pushed the mother to the floor. In the order appealed from, the Family Court, without a hearing, dismissed the mother's family offense petition for failure to state a cause of action. The mother appeals.

"A family offense petition may be dismissed without a hearing where the petition fails to set forth factual allegations which, if proven, would establish that the respondent has committed a qualifying family offense" (Matter of Brown-Winfield v Bailey, 143 AD3d 707, 708; see Matter of Lashlee v Lashlee, 145 AD3d 723, 724). "In determining whether a petition alleges an enumerated family offense, the petition must be liberally construed, the facts alleged in the petition must be accepted as true, and the petitioner must be granted the benefit of every favorable inference" (Matter of Arnold v Arnold, 119 AD3d 938, 939; see Matter of Lashlee v Lashlee, 145 AD3d at 724; Matter of Brown-Winfield v Bailey, 143 AD3d at 708).

Here, affording the petition a liberal construction, accepting the allegations contained therein as true, and granting the petitioner the benefit of every favorable inference, the petition adequately alleged that the father committed family offenses against the mother and the child (see Family Ct Act § 821[1][a]; Matter of Ronnie B. v Charlene G., 138 AD3d 605, 605-606; Matter of Smith v Howard, 113 AD3d 781, 781-782; Matter of Pamela N. v Neil N., 93 AD3d 1107, 1109-1110). Accordingly, the Family Court erred in dismissing the mother's family offense petition for [*2]failure to state a cause of action.

RIVERA, J.P., AUSTIN, MILLER and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court