Opinion
2021–08998 Docket No. O–01741–21
01-11-2023
In the Matter of Joel SILVERMAN, appellant, v. Heidi S. LEIBOWITZ, respondent.
Ellen O'Hara Woods, New City, NY, for appellant. Tamir Law Group, P.C., New York, NY (Alexander Markus of counsel), for respondent.
Ellen O'Hara Woods, New City, NY, for appellant.
Tamir Law Group, P.C., New York, NY (Alexander Markus of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of dismissal of the Family Court, Rockland County (Dean Richardson–Mendelson, Ct. Atty. Ref.), dated September 1, 2021. The order of dismissal, without a hearing, dismissed the petition for failure to state a cause of action.
ORDERED that the order of dismissal is affirmed, with costs.
The petitioner commenced this proceeding pursuant to Family Court Act article 8, alleging that his former wife committed, inter alia, the family offense of harassment in the second degree. In an order of dismissal dated September 1, 2021, the Family Court, without a hearing, dismissed the petition for failure to state a cause of action. The petitioner appeals.
"In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence" ( Matter of Buchovska v. Kamolov, 209 A.D.3d 857, 857, 175 N.Y.S.3d 483 [internal quotation marks omitted]; see Family Ct Act § 832 ). 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 Jones v. Rodriguez, 209 A.D.3d 652, 653, 174 N.Y.S.3d 861 [internal quotation marks omitted]; see Matter of Silverman v. Leibowitz, 198 A.D.3d 903, 904, 152 N.Y.S.3d 843 ; Matter of Lashlee v. Lashlee, 161 A.D.3d 865, 866, 76 N.Y.S.3d 228 ). "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 Jones v. Rodriguez, 209 A.D.3d at 653, 174 N.Y.S.3d 861 [internal quotation marks omitted]; see Matter of Silverman v. Leibowitz, 198 A.D.3d at 904, 152 N.Y.S.3d 843 ; Matter of Lashlee v. Lashlee, 161 A.D.3d at 866, 76 N.Y.S.3d 228 ).
Here, contrary to the petitioner's contention, liberally construing the allegations of the family offense petition and giving it the benefit of every possible favorable inference, the petition was conclusory and failed to allege acts which, if committed by the respondent, would constitute the family offense of harassment in the second degree (see Family Ct Act § 812[1] ; Penal Law § 240.26 ). Accordingly, the Family Court properly dismissed the petition without a hearing (see Matter of Jones v. Rodriguez, 209 A.D.3d at 653, 174 N.Y.S.3d 861 ; Matter of Silverman v. Leibowitz, 198 A.D.3d 903, 904, 152 N.Y.S.3d 843 ; Matter of Lashlee v. Lashlee, 161 A.D.3d 865, 866, 76 N.Y.S.3d 228 ).
DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.