Opinion
2016-11835, Docket No. O-10686-16.
11-01-2017
In the Matter of Tracey WALDRON, appellant, v. Wayne HEYWARD, respondent.
Yasmin Daley Duncan, Brooklyn, NY, for appellant. Ronna Gordon–Galchus, Fresh Meadows, NY, for respondent.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
Ronna Gordon–Galchus, Fresh Meadows, NY, for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, HECTOR D. LaSALLE, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the petitioner from an order of the Family Court, Kings County (Jennifer Mitek, Ct. Atty. Ref.), dated October 27, 2016. The order, without a hearing, dismissed the family offense petition on the ground that it failed to state a cause of action.
ORDERED that the order is affirmed, without costs or disbursements.
On April 22, 2016, the petitioner filed a family offense petition pursuant to article 8 of the Family Court Act. Following a court appearance, the Family Court dismissed, without a hearing, the petition on the ground that it failed to state a cause of action. The petitioner appeals.
"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, 708, 38 N.Y.S.3d 434 ). "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 Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879 ). Here, the petition was conclusory and devoid of specificity, and it did not allege conduct constituting the family offense of harassment in the second degree (see Penal Law § 240.26[3] ; Matter of Janczewski v. Janczewiski, 152 A.D.3d 595, 59 N.Y.S.3d 79 ; Matter of Graham v. Rawley, 148 A.D.3d 1018, 1018–1019, 48 N.Y.S.3d 783 ; Matter of Graham v. Rawley, 147 A.D.3d 1053, 1054, 46 N.Y.S.3d 917 ; Matter of Ring v. Ring, 140 A.D.3d 1076, 33 N.Y.S.3d 750 ; Matter of Marino v. Marino, 110 A.D.3d 887, 972 N.Y.S.2d 919 ; Matter of Vasciannio v. Nedrick, 305 A.D.2d 420, 758 N.Y.S.2d 534 ; cf. Matter of Jones v. Jones, 149 A.D.3d 1079, 53 N.Y.S.3d 192 ; Matter of Brown–Winfield v. Bailey, 143 A.D.3d at 708, 38 N.Y.S.3d 434). Accordingly, the Family Court properly dismissed the petition without a hearing.