MATTER OF MP v. MS
| Decision Date | 17 October 2000 |
| Citation | 715 N.Y.S.2d 831,186 Misc.2d 173 |
| Court | New York Family Court |
| Parties | In the Matter of M.P., Petitioner,<BR>v.<BR>M.S., Respondent. |
Seiff, Kretz & Maffeo, New York City (Marianne Olenko of counsel), for respondent.
Cohen & Goldstein, New York City (Joseph DiSimone of counsel), for petitioner.
In this Family Court Act article 8 proceeding filed on June 29, 2000, the petitioner, a New York resident, seeks an order of protection against her brother-in-law, a resident of Florida. The respondent moved on August 18, 2000 to dismiss the petition on the grounds that the court lacks jurisdiction to proceed. The petitioner filed a cross motion, dated September 6, 2000, and an answer, which included allegations that the respondent allegedly violated a temporary order of protection issued ex parte by this court on July 6, 2000 (Gloria Sosa-Lintner, J.). The respondent filed a reply affidavit dated September 16, 2000. The petitioner then filed a "reply affidavit in support of cross-motion" dated October 3, 2000, and also submitted a legal memorandum. After review of all of the papers submitted herein and the applicable law, the court at this time grants a hearing on whether the respondent has sufficient contacts of the appropriate type with New York State to satisfy the jurisdictional prerequisite of CPLR 302 (a) (3) (i) or (ii) or 302 (a) (4). All remaining applications are held in abeyance.
Family Court Act § 812 confers subject matter jurisdiction herein, stating that the Family Court has jurisdiction over family offense proceedings involving acts constituting certain enumerated crimes which occur between family members. There is no dispute that, if true, the petitioner's allegations would constitute requisite crimes or that a requisite family relationship exists.
The issue at bar is whether this court can obtain personal jurisdiction over the respondent. The affidavit of service submitted by the petitioner indicates that personal service on the respondent was made in Florida. Family Court Act § 154 (c) provides for such out-of-State service in family offense proceedings, subject to the provisions of CPLR 301 and 302. Family Court Act § 154 (c) permits out-of-State service if the petitioner resides within New York and the alleged act occurred within New York. However, with respect to an act occurring outside New York, CPLR 302 (a) (3) would permit a New York court to obtain personal jurisdiction over a respondent if, inter alia, the act caused injury within New York. In the instant matter, the parties agree that the respondent is a resident of Florida and that the alleged incidents occurred in Florida while the petitioner was in that State. The petitioner argues, however, that one of the respondent's acts, an alleged statement to her by the respondent that "I want to kill you,"[*] has caused her ongoing emotional and psychological harm in New York, i.e., she claims to be afraid of the respondent and believes that he will come to New York and carry out the alleged threat.
The court finds no reported appellate or trial court case on point. (See, Matter of Eileen W. v Mario A., 169 Misc 2d 484 [Fam Ct, NY County 1996] []; 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 proceedings, but case dismissed (predated amendments to Family Ct Act § 154)]; Pierson v Pierson, 147 Misc 2d 209 [Fam Ct, Monroe County 1990] [when respondent is served with legal process in New York, Family Court has subject matter jurisdiction in family offense proceeding even when all incidents occur outside New York].)
This court holds that the petitioner's assertion of fear resulting from the threat alleged to have been made in Florida is sufficient to satisfy the jurisdictional requirement of CPLR 302 (a) (3) that an out-of-State act must have a claimed effect...
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Davis v. Masunaga Group, Inc., 02 CIV. 0909(LAK).
...cannot be said to be within the forum so as to justify personal jurisdiction over the defendant."). 22. See Matter of M.P. v. M.S., 186 Misc.2d 173, 175, 715 N.Y.S.2d 831, 832 (2000) (holding that New York plaintiff's fear, resulting from alleged death threat made to her in New York over th......
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...defendant "made twenty telephone calls to plaintiff in New York State as part of a course of harassment"); M.P. v. M.S., 186 Misc.2d 173, 175, 715 N.Y.S.2d 831 (N.Y.Fam.Ct.2000) (holding that a death threat made to plaintiff in Florida constituted an injury in New York, because plaintiff's ......
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...when defendant "made twenty telephone calls to plaintiff in New York State as part of a course of harassment"); M.P. v. M.S., 186 Misc. 2d 173, 175 (N.Y. Fam. Ct. 2000) (holding that a death threat made to plaintiff in Florida constituted an injury in New York, because plaintiff's ongoing e......
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In Matter of C.V. v. T.B.
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