Matter of Lavern B. v Byron W.

[*1] Matter of Lavern B. v Byron W. 2013 NY Slip Op 50807(U) Decided on May 22, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2013
Family Court, Queens County

In the Matter of a Family Offense Proceeding under article 8 of the Family Court Act Lavern B., Petitioner,

against

Byron W., Respondent.



O-5920/12



John A. Diaz, New York, NY for respondent.

John M. Hunt, J.

Respondent has moved for an order pursuant to Civil Practice Law and Rules §5015

vacating an order of protection issued by this Court on June19, 2012. Upon review of the motion

and the affidavit of the respondent in support of the motion, the Court finds that the motion in its

present form is unsupported, and it is denied.

By petition filed pursuant to Family Court Act §821 on March 13, 2012 the petitioner

alleged that she and the respondent have an "intimate relationship" within the meaning of Family

Court Act §812 (1) (e), and that on March 7, 2012 at the home of the respondent's uncle in

Philadelphia, Pennsylvania the respondent "attacked me in the living room of his uncle's home.

The respondent and his uncle were telling me to go to a hotel room but I refused. The respondent

then attacked me on the couch by kissing my breast and squeezing my inner thighs several times, [*2]

all because I refused to have sex with him several times, which I said out loud. I went to the doctor for medical attention on 3-12-12."[FN1]

A Court Attorney-Referee granted a temporary order of protection in favor of the

petitioner on March 13, 2012 (Fam. Ct. Act §828 [1] [a]), and process was issued for the

respondent for the return date of April 25, 2012. The case came before another Court Attorney-

Referee on April 25, 2012 and petitioner appeared. The Referee noted that the respondent had

"sent a letter that he is requesting a later date after June 6th to attend court proceedings", and the

temporary order of protection was extended and the case continued until June 19, 2012 before

this Court.

When respondent failed to appear before on June 19, 2012 the Court proceeded to an

inquest upon the family offense petition upon his default. Petitioner testified in support of the

petition and the Court drew a negative inference based upon respondent's failure to appear and

testify (see, Matter of Commissioner of Social Services [Patricia A.] v. Philip DeG., 59 NY2d

137, 141 [1983]; Matter of Commissioner of Social Services [Dante M.] v. Denise J., 87 NY2d

73, 79 [1995]; Matter of Clarissa S.P., 91 AD3d 785, 786 [2012]; Matter of Rosemary V., 103

AD3d 484 [2013]; Matter of Adam Mike M., 104 AD3d 572, 573 [2013]). At the conclusion of

the testimony the Court found by a preponderance of the evidence (Fam. Ct. Act §832; Matter of

Anonymous v. Anonymous, 23 AD3d 461 [2005]; Matter of Patton v. Torres, 38 AD3d 667, 668

[2007]; Matter of Kaur v. Singh, 101 AD3d 877, 878 [2012]; Matter of Jarrett v. Jarrett, 102

AD3d 695 [2013]), that the parties have an intimate relationship within the meaning of Family [*3]

Court Act §812 (1) (e), in that they have "a former dating relationship" (see, Matter of Seye v.

Lamar, 72 AD3d 975, 976 [2010]; Matter of Willis v. Rhinehart, 76 AD3d 641, 642-643 [2010];

Matter of LaVann v. Bell, 77 AD3d 1422, 1423 [2010]; Matter of Jessica D. v. Jeremy H., 77

AD3d 87, 89-90 [2010]). The Court further found that petitioner established that respondent

committed the family offenses of forcible touching (Penal Law §130.52), Assault in the Third

Degree (Penal Law §120.00 [1]), and Harassment in the Second Degree (Penal Law §240.26 [1]).

At the conclusion of the fact-finding hearing the Court dispensed with a dispositional

hearing (Matter of Hazel P.R. v. Paul J.P., 34 AD3d 307, 308 [2006]; Matter of Wan-Su Li v.

Feng, 45 AD3d 775, 775 [2007], lv denied 10 NY3d 703 [2008]; Matter of Kristina K. v.

Timothy K., 91 AD3d 1045, [2012]; Matter of Marisela N. v. Lacy M.S., 101 AD3d 425 [2012]),

and issued a final order of protection in favor of the petitioner for a period of two years (Fam. Ct.

Act §§841 [d]; 842).

Upon the conclusion of the proceedings the Court issued a bench warrant to secure the

appearance of the respondent so that he could be informed of the Court's findings and served

with a copy of the final order of protection. Respondent subsequently appeared voluntarily before

the Court on December 19, 2012 and the Court assigned counsel to represent him in post-

dispositional proceedings, including the filing of this motion (Fam. Ct. Act §§262 [a] [iii]).

The relevant portions of the affidavit of the respondent submitted in support of the

motion states that he served in the United States Army for 15 years, most recently as a Sergeant

with the 299th Quartermaster Unit, where he was assigned to Iraq, although he does not provide

exact dates of his military service nor dates upon which he was deployed to Iraq as a member of [*4]

the armed forces. Respondent concedes that he and the petitioner "began dating" in 2011 and that

"on March 7, 2012, the petitioner came to visit me in Philadelphia, PA, and that we spent the

night at my mother's house." Moreover, respondent states that "some time later I became aware

from my mother in Philadelphia, PA, that the petitioner had obtained a restraining order against

me alleging that during the visit on March 7, 2012, I had sexually assaulted her" and respondent

denies the allegations made by the petitioner.

Respondent further states that "I wrote a letter to the court stating that as a result of being

on active duty I was unable to come to the court appearance" (italics added), and "[t]hat I have a

reasonable excuse" for not appearing "in that I was on active duty during a time of war and was

unable to come to court and that the allegations made by the petitioner are false."

Because the Family Court Act does not provide a specific procedure by which a party

may seek to vacate an order of protection issued upon default, the provisions of Civil Practice

Law and Rules §5015 are applicable (Matter of Geraldine Rose W., 196 AD2d 313, 316 [1994],

lv dismissed 84 NY2d 967 [1994]; Matter of Amirah Nicole A., 73 AD3d 428 [2010], lv

dismissed 15 NY3d 766 [2010]; Matter of Evan Matthew A., 91 AD3d 538, 539 [2012]).

Accordingly, in order to obtain relief from the final order entered upon default, respondent must

demonstrate both a reasonable excuse for his failure to appear in court as well as a meritorious

defense to the allegations in the family offense petition (Matter of Gray v. B.R. Trucking Co., 59

NY2d 649, 650 [1983]; DiLorenzo v. A.C. Dutton Lumber Co., 67 NY2d 138, 141 [1986];

Matter of Borsching v. Borsching, 190 AD2d 1073, 1074 [1993]; Tribeca Lending Corp. v.

Correa, 92 AD3d 770, 771 [2012]; People's United Bank v. Latini Tuxedo Management, LLC,

95 AD3d 1285, 1286 [2012]; Trepel v. Greenman-Pedersen, Inc., 99 AD3d 789, 791 [2012];

[*5]Glukhman v. Bay 49th Street Condominiums, LLC, 100 AD3d 594, 595 [2012]).

A review of the record of this proceeding raises significant questions as to whether the

respondent has presented a reasonable excuse for his failure to appear in court on June 19,

2012. While respondent alleges in the motion that he "was on active duty" with the United States

Army "during a time of war and was unable to come to court" to defend against the petition,

there is nothing to substantiate that respondent was on active military duty on June 19, 2012.

Respondent has not presented the Court with a copy of his orders issued by the Army or any

document which would confirm what he suggests was his deployment to Iraq as a Sergeant with

the 299th Quartermaster Unit or his confinement to a military installation on June 19, 2012.

While respondent correctly states that he sent a written communication to the Family

Court relating to this proceeding and his assertion that he was unable to appear in court on the

initial return date of April 25, 2012, that letter, which is in the possession of this Court, makes no

mention of any military duty or any inability to appear due to military service. To the contrary,

the letter sent by the respondent which is dated April 20, 2012 reads, in pertinent part, as follows:

I Byron W., in regards to my court appearance for docket No.O-05920-12 I

would like to request an extension due to my being unable to provide proper

care for my children here in Texas while traveling to New York to attend court.

I will be able to travel after June 6, 2012 when this school year is done. Please

consider my request and notify me by mail or telephone in regard to my request.

In seeking an adjournment of the appearance scheduled for April 25, 2012, the respondent

indicated that he could not travel from Texas to New York until "after June 6, 2012" due to child

care issues. Respondent makes no mention of being on active military duty as of the date of his

letter to the Family Court, nor does his letter state any expectation that he would be on active [*6]

military duty on or about June 19, 2012, the date to which the Court Attorney-Referee adjourned

this case to this Court.[FN2]

Under the circumstances, given the absence of any documentation relating to

respondent's assertion that he was "on active duty" and unable to appear in court on June 19,

2012, the sole reasonable excuse asserted in his motion papers, the motion must be denied. It is

therefore unnecessary for this Court to decide at this time whether respondent has sufficiently

demonstrated the existence of a potentially meritorious defense to the family offense proceeding

(Trepel at 792; Cantor v. Flores, 94 AD3d 936, 937 [2012]; Spitzer v. Landau, 104 AD3d 936,

937 [2013]; CEO Business Brokers, Inc.v. Alqabili, 105 AD3d 989 [2013]; HSBC Mortgage

Corp. v. Morocho, ___ AD3d ___, 2013 NY Slip Op 03458).

It is hereby

ORDERED, that respondent's motion is denied for the reason stated herein; and it is

further

ORDERED, that respondent may renew his motion under Civil Practice Law and Rules,

by way of an order to show cause which is supported by official documentation from the United

States Army which substantiates his assertion that his inability to appear on June 19, 2012 was

occasioned by active duty status with the armed forces; and it is further

ORDERED, that nothing in this order shall preclude the respondent from seeking

relief in accordance with the New York State Soldiers' and Sailors Civil Relief Act, provided [*7]

that there is a good faith basis to seek relief in accordance with Military Law §303.[FN3]

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

May 22, 2013 Footnotes

Footnote 1:The geographic jurisdiction limitations contained in Criminal Procedure Law article 20

are inapplicable to family offense proceedings commenced in the Family Court (Matter of

Richardson v. Richardson, 80 AD3d 32, 42 [2010]; Matter of King v. Edwards, 92 AD3d 783, 784 [2012]).

Footnote 2:Indeed, the New York State Soldiers' and Sailors' Civil Relief Act expressly provides for a person on active duty with the armed forces to request a stay of judicial proceedings "during the period of such service or within sixty days thereafter" (Military Law §304; see, Jusino v. New York City Housing Authority, 255 AD2d 41, 46 [1999]).

Footnote 3:Although respondent has not moved for relief under the New York State Soldiers' and Sailors Civil Relief Act (Military Law §300 to §328), Military Law §303 (2) provides, inter alia,

that "[i]f any judgment shall be rendered in any action or proceeding against any person in military service during the period of such service, or within thirty days thereafter, and it appears

that such person was prejudiced by reason of his military service in making his defense thereto,

such judgment may, upon application, made by such person or his legal representative, not later

than ninety days after the termination of such service, be opened by the court rendering the same

and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious defense to the action or proceeding, or to some part thereof."