Opinion
06-22-2016
In the Matter of Alba RING, appellant, v. John RING, respondent.
Daniel E. Lubetsky, Jamaica, NY, for appellant. Larry S. Bachner, Jamaica, NY, for respondent.
Daniel E. Lubetsky, Jamaica, NY, for appellant.
Larry S. Bachner, Jamaica, NY, for respondent.
Opinion Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated February 26, 2015. The order granted the respondent's motion to dismiss the petitioner's family offense petition.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding against her husband, the respondent. The respondent moved to dismiss the petition for failure to state a cause of action, and the Family Court granted the motion.
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 ; see Matter of Smith v. Howard, 113 A.D.3d 781, 782, 978 N.Y.S.2d 856 ; Matter of Clark v. Ormiston, 101 A.D.3d 870, 871, 954 N.Y.S.2d 903 ).
Here, even liberally construing the petition and giving it the benefit of every favorable inference, it failed to adequately allege an enumerated family offense (see Family Ct. Act § 812[1] ). Contrary to the petitioner's contention, the petition failed to adequately allege that the respondent, acting with the requisite intent that is inferable from the alleged circumstances, engaged in the offenses of harassment in the second degree or stalking in the fourth degree (see Penal Law §§ 240.26, 120.45 ; Matter of Cote v. Berger, 112 A.D.3d 821, 822, 978 N.Y.S.2d 54 ; Matter of Price v. Jenkins, 92 A.D.3d 787, 938 N.Y.S.2d 452 ; Matter of Davis v. Venditto, 45 A.D.3d 837, 838, 846 N.Y.S.2d 365 ).
ENG, P.J., ROMAN, LaSALLE and BARROS, JJ., concur.