Opinion
12-07-2016
In the Matter of Samuel M. LASHLEE, petitioner-appellant, v. Deborah M. LASHLEE, respondent; Ryan L. (Anonymous), et al., nonparty-respondents.
Joseph Petito, Poughkeepsie, NY, for petitioner-appellant. Diane P. Foley, Wappingers Falls, NY, attorney for the children, the nonparty-respondents. Salvatore C. Adamo, New York, NY, for respondent.
Joseph Petito, Poughkeepsie, NY, for petitioner-appellant.
Diane P. Foley, Wappingers Falls, NY, attorney for the children, the nonparty-respondents.
Salvatore C. Adamo, New York, NY, for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
Appeals by the father from (1) an order of the Family Court, Dutchess County (Joseph A. Egitto, J.), dated September 30, 2015, and (2) an order of that court dated October 5, 2015. The order dated September 30, 2015, insofar as appealed from, granted that branch of the children's motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the father's family offense petition as alleged that the mother committed acts constituting the family offense of reckless endangerment in the second degree. The order dated October 5, 2015, vacated a temporary order of protection dated August 21, 2015.
ORDERED that the order dated September 30, 2015, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the order dated October 5, 2015, is affirmed, without costs or disbursements.
The parties are divorced and have two children together. In August 2015, during the pendency of the divorce action, the father commenced this family offense proceeding against the mother alleging that on one occasion, she was operating a minivan in which the children were passengers when, upon being informed by the children, who "were afraid," that one of the doors of the vehicle was open, she drove to the "next stop" and closed the door. On August 21, 2015, the Family Court issued a temporary order of protection on behalf of the children. Thereafter, the children moved pursuant to CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action. In an order dated September 30, 2015, the Family Court granted the motion and, in effect, directed that the temporary order of protection be vacated. In an order dated October 5, 2015, the Family Court vacated the temporary order of protection. The father appeals from so much of the order dated September 30, 2015, as granted that branch of the motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the petition as alleged that the mother committed acts constituting the family offense of reckless endangerment in the second degree. The father also appeals from the order dated October 5, 2015.
"In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence" (Matter of Davis v. Wright, 140 A.D.3d 753, 754, 30 N.Y.S.3d 923 ; see Family Ct. Act § 832 ; Matter of Frimer v. Frimer, 143 A.D.3d 895, 39 N.Y.S.3d 226 ; Matter of Jordan v. Verni, 139 A.D.3d 1067, 30 N.Y.S.3d 841 ; Ramdhanie v. Ramdhanie, 129 A.D.3d 737, 9 N.Y.S.3d 583 ). However, "[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 A.D.3d 707, 38 N.Y.S.3d 434 ; see Matter of Davis v. Venditto, 45 A.D.3d 837, 846 N.Y.S.2d 365 ). "In determining a motion to dismiss a family offense petition pursuant to CPLR 3211(a)(7), ‘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 Xin Li v. Ramos, 125 A.D.3d 681, 682, 3 N.Y.S.3d 86, quoting Matter of Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879 ).
Here, the Family Court properly granted that branch of the children's motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the petition as alleged that the mother committed acts constituting the family offense of reckless endangerment in the second degree (see Family Ct. Act § 812 [1 ]; Penal Law § 120.20 ). Reckless endangerment cannot be found "in the absence of actual and ‘substantial risk of serious physical injury’ " (Matter of Stanley F., 76 A.D.3d 1069, 1071, 908 N.Y.S.2d 127, quoting Penal Law § 120.20 ). Even construing the petition liberally and giving the father the benefit of every favorable inference, the petition fails to allege conduct that would constitute the family offense of reckless endangerment in the second degree (see Penal Law § 120.20 ; People v. Davis, 72 N.Y.2d 32, 530 N.Y.S.2d 529, 526 N.E.2d 20 ; cf. Matter of Nakia C. v. Johnny F.R., 112 A.D.3d 538, 978 N.Y.S.2d 129 ).
Since the Family Court properly directed the dismissal of so much of the family offense petition as alleged that the mother committed acts constituting the family offense of reckless endangerment in the second degree, it also properly vacated the temporary order of protection (see Matter of Krisztina K. v. John S., 103 A.D.3d 724, 960 N.Y.S.2d 144 ).