Aloi v. Nassau Sheriff's Dept.

• Decision Date: 20 June 2005
• Docket Number: 2000/03.
• Parties: DOMINICK ALOI, Petitioner, v. NASSAU COUNTY SHERIFF'S DEPARTMENT, Respondent.
• Court: New York Supreme Court

9 Misc.3d 1050

800 N.Y.S.2d 873

2005 NY Slip Op 25369

DOMINICK ALOI, Petitioner, v. NASSAU COUNTY SHERIFF'S DEPARTMENT, Respondent.

2000/03.

Supreme Court, Nassau County.

June 20, 2005.

Goldman & Maurer, LLP, Jericho (Sandra M. Spector of counsel), for petitioner.

Lorna Goodman, Mineola (Donna A. Napolitano of counsel), for respondent.

Roberta Fox, Sea Cliff, Law Guardian.

OPINION OF THE COURT

ZELDA JONAS, J.

Petitioner's application pursuant to CPLR article 78 for an order directing the release of 26 firearms previously seized by the respondent, Nassau County Sheriff's Department, Family Court Domestic Violence Unit, pursuant to an order of protection issued by Judge Lawrence in the Family Court is granted.

This matter has had a convoluted history and presents a legislative "glitch." During a contested divorce proceeding, the Family Court (Lawrence, J.) issued, inter alia, a temporary order of protection dated April 26, 2001. At the time the order was issued, both parties appeared before Judge Lawrence. Pursuant to the temporary order of protection, the Sheriff's Department seized 26 guns belonging to the petitioner (Family Ct Act § 842-a). Thereafter, on May 2, 2001, Judge Lawrence issued a permanent order of protection against the petitioner. On or about January 31, 2002, the parties reached a settlement agreement. By order dated April 11, 2002, pursuant to the settlement agreement, Judge Lawrence withdrew the permanent order of protection before it expired by its own terms. A judgment of divorce was entered on July 3, 2002.

Subsequently, petitioner applied to this court, pursuant to article 78, for an order directing the release of the firearms seized by the Sheriff's Department, Family Court Domestic Violence Unit. This court denied the application without prejudice to renew in Family Court. Its decision was based upon the theory that the Family Court was better capable of deciding the issue since the history and appropriate records of alleged violence had been before the Family Court when the order of protection was first issued, the seizure of the firearms was first ordered, and the order of protection was subsequently vacated by Judge Lawrence.

On December 2, 2002, in compliance with this court's order, petitioner brought a notice of petition to the Nassau County Family Court for an order releasing the firearms seized in conjunction with the order of protection Judge Lawrence had issued. Although the petition was unopposed, it was dismissed by Judge Lawrence due to lack of jurisdiction. Petitioner appealed the Family Court order to the Appellate Division, Second Department, and the order was affirmed (Matter of Aloi v Aloi, 10 AD3d 655 [2004]). As a result, the matter was brought before this court by notice of motion for renewal of this court's previous order. The motion was granted, but since this court had no familiarity with the parties or the proceedings that were held before Judge Lawrence, it was necessary for the court to conduct a hearing. For the purpose of the hearing, the court renewed the appointment of the Law Guardian, who had been appointed in Family Court to protect the interests of the children. At the time of the hearing, the children were 8 and 10 years of age and had visitation with the petitioner.

At the hearing, Deputy Sheriff Mastropieri testified on behalf of the Sheriff's Department. He testified that the Sheriff's Department's general rule in returning firearms is that the return is made when an order from the court is provided to the Sheriff's Department. According to Deputy Sheriff Mastropieri, in the past six years that he worked...