Eileen W. v. Mario A.

• Decision Date: 08 May 1996
• Parties: In the Matter of EILEEN W., Petitioner, v. MARIO A., Respondent.
• Court: New York Family Court

Page 452

644 N.Y.S.2d 452

169 Misc.2d 484

In the Matter of EILEEN W., Petitioner, v. MARIO A., Respondent.

Family Court, New York County.

May 8, 1996.

Hellring Lindeman Goldstein & Siegel, Newark, New Jersey (Stephen L. Dreyfus, of counsel), for respondent.

Eileen W., petitioner pro se.

MARY E. BEDNAR, Judge.

Respondent, Mario A., has moved to dismiss the family offense petition filed against him on the ground that this court does not have jurisdiction over the incidents alleged in the petition; that the incidents alleged in the petition do not constitute family offenses under the Family Court Act; and that there is another action pending between the parties for the same relief in another court.

By petition filed on February 21, 1996, petitioner, Eileen W., a resident of New York ¹, alleges that her husband, Mario A., a resident of New Jersey, has committed one or more family offenses within the meaning of Family Court Act § 812(1). In the petition, Ms. W. alleges:

On or about February 15, 1996, at the respondent's lawyers office [in] New Jersey * * * the respondent threatened to "get" the petitioner. The respondent made a gesture with his hand, as in a gun position while saying this. The respondent has physically assaulted the petitioner in the past. The petitioner requests an order of protection to keep respondent away from the petitioner and to stop all threats and harassment.

In support of his motion to dismiss the petition, respondent argues: (1) that this court lacks jurisdiction to entertain this family offense proceeding because the incidents alleged in the petition occurred outside of the State of New York; (2) the incidents alleged in the petition do not constitute a family offense under article 8 of the Family Court Act; and (3) there is a divorce action pending between the parties in the Superior Court of the State of New Jersey, and petitioner may seek an order of protection in that action.

I

Under the facts of this proceeding, the Family Court may exercise its family offense jurisdiction pursuant to article 8 of the Family Court Act.

In the petition, it is alleged that the respondent "threatened" petitioner on February 15, 1996, at the Newark, New Jersey office of his attorneys, and that "respondent has physically assaulted the petitioner in the past". At oral argument upon respondent's motion, petitioner stated that "there were two [incidents] that took place in Newark", and that on January 6, 1996, respondent "assaulted" her in a public establishment in Greenwich Village.

While the Family Court and the criminal courts ² have had, since 1977, concurrent jurisdiction over acts which would constitute family offenses (see, Laws of 1977, ch. 449; Laws of 1994, ch. 222; Fam.Ct.Act §§ 812[1]; 115[e]; Criminal Procedure Law § 530.11[1] ) ³, family offense proceedings commenced in the Family Court are civil proceedings designed to stop violence, end family disruption, and provide protection (see, Fam.Ct.Act § 812[2][b]; Criminal Procedure Law § 530.11[2][b] ), while those commenced in a criminal court are criminal actions for the purpose of prosecuting an offender, which may result in a criminal conviction (see, Fam.Ct.Act § 812[2][c]; Criminal Procedure Law § 530.11[2][c] ).

While it is true that the designated family offenses are derived from the New York Penal Law, there is no merit to respondent's argument that the provisions of article 20 of the Criminal Procedure Law, relating to the geographical jurisdiction of criminal offenses, are applicable to this Family Court family offense proceeding.

In granting family offense jurisdiction to the Family Court, ⁴ the Legislature sought to transfer jurisdiction over acts, which although technically crimes or violations under the Penal Law, to the Family Court for non-criminal adjudication (see, People v. Johnson, 20 N.Y.2d 220, 222-223, 282 N.Y.S.2d 481, 229 N.E.2d 180; People v. Williams, 24 N.Y.2d 274, 278, 300 N.Y.S.2d 89, 248 N.E.2d 8; People v. Nuernberger, 25 N.Y.2d 179, 182, 303 N.Y.S.2d 74, 250 N.E.2d 352; see also, Report of Joint Legislative Committee on Court Reorganization, No. 2--The Family Court Act, McKinney's 1962 N.Y. Session Laws, at 3430) ⁵.

While the enumerated family offense acts are, by definition, offenses under the Penal Law (see, Matter of Nadeau v. Sullivan, 204 A.D.2d 913, 915, 612 N.Y.S.2d 501; Matter of Dutz v. Colon, 183 A.D.2d 715, 716, 586 N.Y.S.2d 511; Matter of Holcomb v. Holcomb, 176 A.D.2d 409, 574 N.Y.S.2d 115; Matter of Rogers v. Rogers, 161 A.D.2d 766, 556 N.Y.S.2d 114; Matter of Ross v. Ross, 152 A.D.2d 580, 543 N.Y.S.2d 162) ⁶, the purpose of that statutory provision is to limit the court's family offense jurisdiction to situations requiring judicial intervention, and to exclude petty occurrences (see, Matter of Finocchiaro v. Finocchiaro, 192 A.D.2d 1089, 598 N.Y.S.2d 754; Matter of Jones v. Roper, 187 A.D.2d 593, 591 N.Y.S.2d 336; Di Donna v. Di Donna, 72 Misc.2d 231, 339 N.Y.S.2d 592; Roofeh v. Roofeh, 138 Misc.2d 889, 525 N.Y.S.2d 765).

There is no indication, however, that by defining family offenses as acts which would also constitute offenses under the Penal Law, the Legislature sought to limit the Family Court's jurisdiction to acts which have occurred in the State (see, Matter of Pierson v. Pierson, 147 Misc.2d 209, 555 N.Y.S.2d 227), ⁷ although the provisions of Criminal Procedure Law article 20 may be relevant in 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 jurisdiction].

Therefore, because there is no support for the argument that the provisions of article 20 of the Criminal Procedure Law are intended to apply to a family offense proceeding commenced in the Family Court, the motion to dismiss on that ground is denied. ⁸

II

Although it is not clear that the incident which is alleged to have occurred in Newark, New Jersey on February 15, 1996 would constitute a family offense (see, Penal Law §§ 240.25; 240.26), because the petition contains another viable family offense, the allegations relating to the February 15, 1996 incident are not summarily dismissed (see, Matter of Jones v. Roper, 187 A.D.2d, at 593, 591 N.Y.S.2d 336, supra [petition summarily dismissed where the sole allegation did not constitute a family offense]. However, respondent may make a motion to dismiss that allegation at the appropriate time (see, Civil Practice Law and Rules § 4401).

With respect to respondent's motion to dismiss the petition for failure to state a cause of action (see, Civil Practice Law and Rules § 3211[a][7] ), Ms. W. has alleged in her petition that "[t]he respondent has physically assaulted the petitioner in the past". During oral argument of the motion, Ms. W. stated that, on January 6, 1996, the respondent "assaulted" her in a public establishment in New York County, and that "he hurt my arm and chest".

Because a family offense proceeding before the Family Court is a civil proceeding, the rules governing the sufficiency and contents of criminal accusatory instruments are not applicable (see, Criminal Procedure Law §§ 100.15[2], [3]; 100.40[1]; 200.30; see also, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71; People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577; People v. Beauchamp, 74 N.Y.2d 639, 541 N.Y.S.2d 977, 539 N.E.2d 1105), and a petitioner need only file a petition which contains an allegation that the respondent has committed one or more family offenses (see, Fam.Ct.Act § 821[1][a]; Matter of Jones v. Roper, 187 A.D.2d, at 593, 591 N.Y.S.2d 336, supra ). ⁹

While a bare allegation that "the respondent assaulted me" may not be sufficient to apprise a respondent of the acts or occurrences supporting that allegation (see, Civil Practice Law and Rules § 3013; Besharov, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 29A, Judiciary Law, Family Court Act § 821, at 166), petitioner's allegation that "the respondent has assaulted petitioner in the past", when coupled with her sworn statement on the record giving details of the January 6, 1996 incident, provides respondent with adequate notice of the alleged family offense so that he may prepare a defense to the allegation. ¹⁰

Thus, giving petitioner's allegations the benefit of every possible inference, and assuming her allegations to be true, as I must upon a motion to dismiss for failure to state a cause of action (see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Franklin v. Winard, 199 A.D.2d 220, 606 N.Y.S.2d 162), I find that the petitioner's allegations set forth a viable cause of action for a family offense (see, Penal Law §§ 110.00, 120.00).

III

Respondent also seeks dismissal of the petition on the ground that there is another action pending between the parties for the same cause of action in the Superior Court of New Jersey (see, Civil Practice Law and Rules § 3211[a][4] ).

Pursuant to Civil Practice Law and Rules § 3211(a)(4), a court may dismiss an action on the ground that there is another action pending between the parties on the same cause of action (see, Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324; Colon v. Gold, 166 A.D.2d 406, 407, 560 N.Y.S.2d 470; Matter of Barrera v. Barrera, 190 A.D.2d 667, 668, 594 N.Y.S.2d 619; Matter of the Guardianship of Janet L., 200 A.D.2d 801, 803, 606 N.Y.S.2d 431; Weinstein-Korn-Miller, N.Y. Civil Practice, vol. 4, Par. 3211.19).

In order for an action to be dismissed on the ground that there is another action pending, it must be shown that there is substantial identity between the parties to the two actions (see, Morgulas v. J. Yudell Realty, Inc., 161...