Charles E. v. Frank E.

• Citation: 72 A.D.3d 1439,899 N.Y.S.2d 464
• Parties: In the Matter of CHARLES E., Appellant, v. FRANK E., Respondent.
• Decision Date: 29 April 2010
• Court: New York Supreme Court Appellate Division

899 N.Y.S.2d 464
72 A.D.3d 1439

In the Matter of CHARLES E., Appellant,
v.
FRANK E., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 29, 2010.

899 N.Y.S.2d 465

Paul J. Connolly, Delmar, for appellant.

Before: MERCURE, J.P., PETERS, ROSE, STEIN and McCARTHY, JJ.

McCARTHY, J.

72 A.D.3d 1439

Appeal from an order of the Family Court of Delaware County (Becker, J.), entered August 17, 2009, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 8, for an order of protection.

Petitioner commenced this proceeding alleging that respondent, who is his father, committed family offenses necessitating an order of protection. Family Court, sua sponte, dismissed all

72 A.D.3d 1440

but nine of 129 paragraphs in the amended petition. After petitioner presented his proof at a hearing, the court granted respondent's motion to dismiss the remainder of the petition. Petitioner appeals.

Petitioner initially contends that he is entitled to a reversal because Family Court deprived him of due process by failing to provide an opportunity to respond to the sua sponte dismissal or respondent's motion at the hearing. The court did not specifically ask counsel to make any legal argument or respond to these actions, but the court also did not prevent counsel from speaking and counsel did not request an opportunity to respond. Even had petitioner been so deprived, he is entitled to a

899 N.Y.S.2d 466

reversal only if the legal arguments and objections he raises would have validly prevented dismissal of his petition. Thus, we now address the merits of his arguments.

Family Court did not err in sua sponte dismissing most of the paragraphs in the amended petition. To be viable under the circumstances here, the paragraphs were required to allege that respondent engaged in harassment of petitioner, i.e., that, "with intent to harass, annoy or alarm," respondent engaged in a course of conduct that did alarm or seriously annoy petitioner and the conduct served no legitimate purpose (Penal Law § 240.26[3]; see Family Ct. Act § 821[1][a] ). Many of the paragraphs contained petitioner's opinions, conclusory statements or irrelevant facts without allegations related to any family offense. Some paragraphs referred to petitioner's family in general or contained allegations against individuals other than respondent. Still others alleged that respondent engaged in bad behavior or committed property crimes against petitioner, but...