Anthony T. v. Anthony J.
| Decision Date | 19 December 1986 |
| Citation | 510 N.Y.S.2d 810,134 Misc.2d 375 |
| Parties | . ANTHONY T., Petitioner, v. ANTHONY J., Respondent. Family Court, Nassau County |
| Court | New York Family Court |
Peter Panaro, Massapequa, for petitioner.
William A. Sandback, Mineola, for respondent.
Petitioner filed a petition, on February 28, 1986, alleging that his father committed family offenses against him and is seeking an order of protection. The petition contains allegations of harassment and disorderly conduct set forth infra. Respondent, by notice of motion, seeks dismissal of the petition, stating that the court lacks both personal and subject matter jurisdiction.
Respondent states that he was served by mail at his home in St. Petersburg, Florida, and that the Court should not be entertaining petitions for an order of protection when the respondent is "half a continent away". Distance is not a basis for dismissal. A person in this state can be farther away from someone in Nassau County than someone in another state (e.g., New Jersey) and such would not be a basis for dismissal if a family offense occurred.
With regard to paragraph 3(b) of the petition, the Court dismisses such allegation, as it fails to state a cause of action stating a family offense. The petition states that . Even if these acts were proven, the Court finds that there was nothing unlawful done by respondent that rises to the level of disorderly conduct.
The allegations in paragraph 3(a), wherein petitioner claims that respondent has threatened petitioner on the phone by telling him he will burn down his house and come by with a machine gun and shoot up petitioner's house; that respondent told petitioner that "he was about to snap and then could not control himself"; and that respondent sometimes calls petitioner several times in one day and at times threatens to murder petitioner, state a cause of action. Clearly, on these facts the petitioner could prove that they rise to the level of harassment, pursuant to the Penal Law, if all the elements could be proven. In a motion to dismiss, the Court must assume they could be and the requisite intent can be proven.
Assuming arguendo, that all the alleged acts set forth in paragraph 3(a) were the result of telephone calls made by respondent from Florida to petitioner in New York, this Court could possibly assume jurisdiction. (The petitioner does not state that the calls were made from Florida and no proof on such issue has yet been offered.) Pursuant to Family Court Act section 818, petitioner may proceed in the county in which the act referred to occurred. Though the respondent may have made the phone calls from Florida, the act of harassment occurred when the phone rang in petitioner's home and respondent's words were heard by petitioner in his home in Nassau County.
Pursuant to CPL section 20.60, "An oral or written statement made by a person in one jurisdiction to a person in another jurisdiction by means of telecommunication, mail or any other method of communication is deemed to be made in each such jurisdiction". The intent of the statute is to guarantee that extra-territoriality is not defeated by modern mechanisms. In People v. Botta, 100 A.D.2d 311, 474 N.Y.S.2d 72, the Appellate Division found that telephone conversations in one county were deemed to be conduct occurring in both the county where the phone call was made and in which the phone call was received. In a subsequent case, the Appellate Division refused to grant prohibition to restrain prosecution of a defendant who had telephoned from Maine to New York. In Machado v. Donalty, 107 A.D.2d 1079, 486 N.Y.S.2d 544, the Court indicated that the fact that defendant made a call from outside New York State was not a bar to his prosecution upon charges based on his telephone conversation from outside the state. The Court finds that it does have subject matter jurisdiction. Having found subject matter jurisdiction, the Court must now turn to the issue of whether the Court has acquired personal jurisdiction over the respondent.
Clearly, if the C.P.L.R. governed, this Court would have personal jurisdiction under C.P.L.R. section 302. The alleged acts of harassment and disorderly conduct occurred in Nassau County. If a person is injured in this state, he may pursue an action in this state pursuant to the C.P.L.R. However, since the Family Court Act sets jurisdictional limits, in this instance the Court cannot look to the C.P.L.R. for guidance.
A Family Court action can proceed only if Family Court Act section 154(a) is complied with. Respondent has been served only by mail in Florida. All jurisdictional objections were not waived, as objections to jurisdiction were made upon respondent's first appearance. Though certain colloquy was had on the record respondent was given an opportunity to make his oral application as to jurisdictional defects on papers. Family Court Act section 154(a) states:
The family court may send process or other mandates in any matter in which it has jurisdiction into any county of the state for service or execution in like manner and with the same force and effect as similar process or mandates of county courts as provided by law.
Thus, service must be done within the state, unless another section in the Family Court Act or C.P.L.R. permits out-of-state service.
Over the years, there has been a constant expansion of extra-territorial jurisdiction of Family Court process by legislative action. This legislative action has almost always been the result of the legislature's reaction to court decisions wherein the Appellate Division has strictly construed the language of the Family Court Act and found it controlling, rather than the more liberal C.P.L.R. long-arm statute. In Wasserman v. Wasserman, 43 A.D.2d 951, 352 N.Y.S.2d 207, the Appellate Division found that the Family Court had no jurisdiction over a respondent to enforce a Family Court support order, since he was not served in New York State. Subsequent thereto, C.P.L.R. section 302 was amended to add subdivision (b), to cure this defect in Family Court and matrimonial actions and to permit the enforcement of...
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... ... determining whether the court may exercise its family offense jurisdiction with respect to acts which take place outside of the State (e.g., Anthony T. v. Anthony J., 134 Misc.2d 375, 510 N.Y.S.2d 810 [harassing telephone calls placed from Florida to New York are within court's family offense ... ...
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...see also, Family Ct Act §§ 154, 165; Matter of Jane O.J. v. Peter L.J., 141 Misc.2d 434, 532 N.Y.S.2d 955; Anthony T. v. Anthony J., 134 Misc.2d 375, 510 N.Y.S.2d 810; Matter of Brian S., 112 Misc.2d 561, 562, 447 N.Y.S.2d 382; cf., Matter of Lawrenz v. Lawrenz, 65 Misc.2d 627, 318 N.Y.S.2d......
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MATTER OF MP v. MS
...civil in nature; thus the geographic limitation contained in CPL article 20 is inapplicable to Family Court proceedings]; Anthony T. v Anthony J., 134 Misc 2d 375 [Fam Ct, Nassau County 1986] [threats telephoned from out of State into New York are acts within New York for family offense pro......