Opinion
O-18972-17/18B
05-11-2018
In the Matter of Millie S., Petitioner, v. Thomas S., Respondent.
The attorneys are: for Wife, Valerie H. Tocci, Esq. of Stutman, Stutman & Lichtestein, 135 West 50th Street, 18th Floor, New York, NY 10020, (212) 226-6644; and for Husband: Mark S. Helweil, Esq., 230 Park Avenue, 18th Floor, New York, NY 10169, (212) 867-5353.
The attorneys are: for Wife, Valerie H. Tocci, Esq. of Stutman, Stutman & Lichtestein, 135 West 50th Street, 18th Floor, New York, NY 10020, (212) 226-6644; and for Husband: Mark S. Helweil, Esq., 230 Park Avenue, 18th Floor, New York, NY 10169, (212) 867-5353.
Papers Numbered Summons, Petitions, Affidavit & Exhibits Annexed 1 Notice of Motion, Affirmation & Exhibits Annexed 2 Affirmation in Opposition & Exhibits Annexed 3 Reply Affirmation & Exhibits Annexed 4 Court Proceedings Transcripts 5
Upon the foregoing papers and for the following reasons, the Motion by Respondent Thomas S. (hereinafter "Husband"), for summary judgment dismissal of the Violation Petition, under CPLR 3212, is granted and the proceeding is hereby dismissed in accordance with the following decision.
By Petition dated July 12, 2017, Petitioner Millie S. (hereinafter "Wife") commenced the underlying Family Court Act article 8 family offense proceeding against Husband in the Kings County Family Court, alleging that he had committed family offenses against her, including assault, menacing and harassment, when in drunken rages he insulted, verbally abused, threatened her life with an ax, and blocked her from leaving the marital residence with their Child. Following several appearances, the Wife, a financial advisor, contemporaneously commenced a divorce action against Husband, who is in the insurance industry, in Kings County Supreme Court. By Short Form Order (Adams, J.) dated November 3, 2017, the parties reached an agreement with respect to the Wife's family offense proceeding in Family Court as well as to Husband's parenting time with their Child in Supreme Court.
As a result, on November 6, 2017, the Family Court (Vargas, J.) fully allocuted the parties and issued a Final Order of Protection against Husband, on consent, excluding him from the marital residence for one year; directing him to stay away from the Wife's home and place of employment; directing him to refrain from committing any family offense against her, including harassment, intimidation, threats and assault; and relevantly, prohibiting him from communicating "or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with [Wife] * * * no text messages; no third-party contact." The Final Order of Protection was made subject to Supreme Court or Family Court orders of custody and visitation and expires on November 5, 2018. Subsequently, the parties continued litigating their matrimonial action and have made numerous appearances before the Hon. Rachel A. Adams in Supreme Court.
By Violation Petition dated March 20, 2018, Wife commenced the instant proceeding in Family Court claiming that Husband and his Private Investigator violated the Order of Protection by emailing and "making third-party contact with" Wife's attorney, Valerie H. Tocci, Esq., on March 3, 8 and 9, 2018, allegedly making threats of criminal prosecution against Wife by the NYPD and the District Attorney's Office for financial fraud unless she capitulated to the Husband's demand to regain access to their apartment "in exchange for a $1,000 payment and the right to purchase the apartment at a price to be agreed upon as we complete financial discovery and settlement." Specifically, the Husband's Private Investigator wrote an email to Wife's counsel on March 3, 2018, stating that:
[He] was retained by [Husband] to investigate the matter of numerous unauthorized withdrawals from his USAA bank account by your client, among other things. [He] obtained all relevant documentation to establish a convincing criminal case against [Wife] in this matter and submitted this to appropriate detectives with the NYPD. * * * Based on the strengths of this case as well as the sophisticated financial experience of your client, which clearly established criminal intent, [the NYPD and the DA] have reviewed the documentation and agreed to assist in moving forward with a criminal action. * * * [Husband] has directed [him] to exercise restraint in this matter, until you have had the opportunity to have substantive discussions in the coming week. Should [Husband] not make any progress in this respect, [he has] been instructed to assist him with filing charges on March 9, 2018 and ensuring the criminal prosecution of your client."Wife's counsel wrote to the Supreme Court complaining about the Husband's actions. In turn, Husband wrote an email to Wife's counsel on March 8, 2018, stating that:
[He] reviewed [Counsel's] letter to the court, which reveals your lack of understanding with regard to the dramatic consequences of your client's arrest for 9 felony acts of financial fraud. An arrest alone on those grounds would mean your client would encounter significant obstacles with any background check for a position in corporate America * * * [He] has gone to great lengths to communicate your client's vulnerability without filling charges largely for the benefit of my daughter due to the severity of the immediate consequences as we will at some point have to resume shared parenting. However, failure to comply with my request will result in charges filed tomorrow. An indictment would follow her arrest shortly, which would jeopardize her continued employment.Based on these emails, Wife contends that Husband committed the family offenses of harassment in the second degree, coercion and intimidation in violation of the Order of Protection's no communication provision, which should be dealt with by the Court in accordance with Family Court Act § 846-a.
By Notice of Motion returnable May 1, 2018, Husband moves for summary judgment dismissing the Wife's Violation Petition pursuant to CPLR 3212 or, in the alternative, for transfer of the proceedings for consolidation with the pending Supreme Court matrimonial action. In support of his Motion, Husband argues that the allegations in Wife's Violation Petition do not amount to any violation of the Order of Protection by Husband since there are no allegations that either him nor the Private Investigator contacted the Wife directly at any time, the Wife has not personally denied the financial fraud accusations against her, and that Husband did not commit any impropriety as he was within his right to retain and use the services of a Private Investigator to gather evidence of Wife's alleged misconduct in pursuance of his divorce action, relying heavily on the case of Anonymous v Anonymous (27 Misc 3d 351, 355 [Sup Ct, Orange County (Kiedaisch, J.) 2010]).
Although Husband's counsel characterizes his Motion as one for summary judgment dismissal under CPLR 3212, it appears in reality to be a motion to dismiss the proceeding prior to the filing an answer for failure to state a cause of action pursuant to CPLR 3211(a)(7), and this Court will so deem and analyze the motion.
In her Affirmation in Opposition, Wife's counsel argues that Husband violated the Order of Protection by contacting her about the contemporaneous divorce proceedings, disregarding the fact that he was represented by counsel, and allegedly knowing that counsel had an obligation to purportedly forward to her client "any and all communications received pertaining to the matters in which [the] firm represents her." Wife contends that Husband committed the family offense of harassment in the second degree under Penal Law § 240.26, in that he threatened her through her counsel that he will contact law enforcement for the purpose of lodging false allegations against Wife, and that he wanted to jeopardize her professional financial licenses and her ability to work in the financial industry. No personal affidavit by Wife denying the allegations has been submitted. After hearing oral arguments and accepting the Reply Affirmation, this Court reserved decision, and hereby agrees with Husband's arguments.
Penal Law § 240.26, provides in pertinent part that: "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or 2. He or she follows a person in or about a public place or places; or 3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."
"In a family offense proceeding, the petitioner has the burden of establishing, 'by a fair preponderance of the evidence,' that the charged conduct was committed as alleged in the petition" (Matter of Frimer v Frimer, 143 AD3d 895 [2nd Dept. 2016], quoting Matter of Bah v Bah, 112 AD3d 921, 921-922; Family Ct Act § 832); however, "the standard of proof that must be met in order to sustain a finding that an individual failed to obey a lawful order" of protection is "beyond a reasonable doubt" (Matter of Rubackin v Rubackin, 62 AD3d 11, 12 [2nd Dept. 2009]; see Matter of Lashlee v Lashlee, ___AD3d___, NYLJ, May 11, 2018, at 30, col 4 [2nd Dept. 2018]; Family Court Act § 846). At the same time, when reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), which is proper here in that family offense proceedings under Family Court Act article 8 are civil in nature (see Family Ct Act § 812[2][b]), the court must afford the petition a liberal construction, "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 AD3d 681, 682 [2nd Dept. 2015]; see Matter of Cote v Berger, 112 AD3d 821, 822 [2nd Dept. 2013]; see Matter of Pamela N. v Neil N., 93 AD3d 1107, 1108 [3rd Dept. 2012]).
Applying these principles to the matter at bar, Husband's motion for an order dismissing the Violation Petition must be granted. In this highly contested matrimonial proceeding, Wife is claiming that Husband violated the Order of Protection by drafting emails sent to Wife's attorney by him and his Private Investigator. Even accepting as true the allegations in the Petition that Husband's conduct in contacting her attorney amounted to threats and intimidation against Wife to have her evicted or criminally prosecuted, and according them the benefit of every reasonable inference, there is no basis for finding that this conduct constituted harassment, coercion or any other family offense against the Wife herself (see Penal Law § 240.26; Matter of Christine P. v Machiste Q., 124 AD3d 531, 532 [1st Dept. 2015]). When this Court issued the Order of Protection on consent directing Husband to have no contact or communication with Wife including through third-parties, Wife's attorney was not within the intended definition of "third parties." Although his contact with Wife's attorney appear inappropriate because he is represented by his own counsel, his emails - when examined in their entirety - do not appear to rise to a course of criminal conduct "with intent to harass, annoy or alarm another person" which, in fact, alarmed or seriously annoyed the Wife, and "serve[d] no legitimate purpose" (Matter of Frimer v Frimer, 143 AD3d at 896; see Matter of Rafael F. v Pedro N., 106 AD3d 635 [1st Dept. 2013]). To the contrary, Husband's emails were addressed solely to Wife's counsel and appear to amount to nothing more that hard-edge bargaining and negotiations, not uncommon in matrimonial actions.
In an analogous situation to the instant matter, where a private investigator was hired to investigate a wife's extramarital affair, the Orange County Supreme Court ruled that, although a person bound by an injunction may not hire others to do what he may not do, "[t]he hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose," which does not constitute harassment, stalking or any violation of an Order of Protection (Anonymous v Anonymous, 27 Misc 3d at 355). Like here, there was no direct contact by the investigator or ex-husband with the ex-wife. Were Husband to have contacted or emailed the Wife directly or through a third-party without a legitimate purpose, those actions could have potentially triggered a violation of the Order (see Matter of Lisa T. v King E. T., 30 NY3d 548, 551 [2017]; Matter of Julie G. v Yu-Jen G., 81 AD3d 1079, 1082 [3rd Dept. 2011] [294 emails sent directly to ex-wife in eight months constituted harassment]). However, in the case of Matter of Cote v Berger (112 AD3d at 822), the Appellate Division, Second Department, held that a respondent did not commit harassment in the second degree, despite, inter alia, actually filing a false petition against the female petitioner; calling, emailing and text messaging her demanding that she let him move back into the parties' house and demanding his belongings; and calling her adult daughters after the petitioner refused to answer his telephone calls. While those actions were clearly more egregious than Husband's actions, no family offense or violation of the Order of Protection was found in that case.
Nor does the precedent relied upon by the Wife call for a different conclusion. In Matter of Frimer v Frimer, the mother was found to have committed harassment in the second degree by calling the police and making false accusations against the father, cursing at and shoving him, and throwing away his personal belongings (see 143 AD3d at 896). In Anita W. v Rohan W. (2006 NY Slip Op 51965[U], 13 Misc 3d 1224[A] [Queens Sup Ct (Morgenstern, J.) 2006]), the court ruled that the respondent willfully violated the order of protection by committing acts of domestic violence in intentionally crashing his car into petitioner's car, smashing her passenger side window with his fist, grabbing her by her hair and "by going to petitioner's friend's house with a machete" threatening her life. These cases are easily distinguishable from the matter at bar because the offending parties there actually, directly and violently contacted, threatened and harassed the victims; Husband did none of those things. No precedent was brought to the Court's attention — nor has its research uncovered — involving a case where contact with a party's attorney has constituted a family offense.
Moreover, we should not lose sight of the fact that Family Court Act § 812(2)(b) provides that the purposes of a family offense court proceeding are to "attempt[] to stop the violence, end the family disruption and obtain protection" for the victimized party. Reasonableness is the guiding consideration when imposing conditions in an order of protection (see Family Ct. Act § 842; Matter of Jodi S. v. Jason T., 85 AD3d 1239, 1242 [3rd Dept. 2011]), and "[t]he major criterion of the reasonableness of conditions imposed is whether they are likely to be helpful in eradicating the root of family disturbance" (Matter of Miriam M. v. Warren M., 51 AD3d 581, 582 [1st Dept. 2008], quoting Matter of Leffingwell v Leffingwell, 86 AD2d 929, 930 [3rd Dept. 1982]). In imposing the no communication provision in the Order of Protection, this Court was seeking to keep the parties away from each other, stop the violence and eradicate the hurtful, insulting and harassing communications which may have been exchanged directly between them as "the root of the family disturbance." Were this Court to find that Husband violated the Order of Protection because of his emails to Wife's attorney, it may set an unreasonable and unworkable precedent for pending matrimonial or Family Court proceedings where pro-se litigants or their agents would not be permitted to contact, plead or even argue their cases with the attorney for the opposite party for pain of being accused of violating existing Orders of Protection. This result would not appear "to stop the violence," protect the parties or eradicate "the root of family disturbance" in any way (Family Court Act § 812[2][b]).
Nevertheless, the Husband's behavior in communicating with opposite counsel is not unfettered. The Court notes that Wife's counsel is an officer of the court who may have a duty to report the Husband's behavior to the presiding Supreme Court Justice. More than correspondence may be necessary in these circumstances, it would appear that counsel may also seek an order preventing Husband from engaging in further direct communications with Wife's counsel. Then, if Husband willfully refuses to comply with the court "lawful mandate" or order without any legitimate purpose, Wife's counsel may herself seek civil or criminal contempt against him (see Judiciary Law §750[3], [4]). As it relates to this case, however, this Court finds that there was no Order of Protection preventing the Husband from communicating with Wife's attorney.
Based on the record presented, the Court finds that the factual allegations set forth in the Petition are insufficient to support a violation of the Order of Protection (see Matter of Christine P. v Machiste Q., 124 AD3d at 532). And, accordingly, the Court grants Husband's motion and hereby dismisses the Wife's Violation Petition. The foregoing constitutes the Decision and Order of this Court.
ENTER:
Dated: May 11, 2018 Brooklyn, New York J.F.C.