Walter Q. v. Stephanie R.

• Decision Date: 13 January 2022
• Docket Number: 530621
• Citation: 201 A.D.3d 1142,162 N.Y.S.3d 187
• Parties: In the Matter of WALTER Q., Appellant, v. STEPHANIE R., Respondent.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 1142

162 N.Y.S.3d 187

In the Matter of WALTER Q., Appellant,

v.STEPHANIE R., Respondent.

530621

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

Calendar Date: December 15, 2021

Decided and Entered: January 13, 2022

Thomas H. Kheel, Ithaca, for appellant.

Thaler & Thaler, PC, Ithaca (Thomas D. Cramer of counsel), for respondent.

Andrea J. Mooney, Ithaca, attorney for the child.

Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from an order of the Supreme Court (Cassidy, J.), entered November 25, 2019 in Tompkins County, which, in a proceeding pursuant to Family Ct Act article 8, granted motions by respondent and the attorney for the child for, among other things, dismissal of the petition.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the married parents of a child (born in 2014). The mother commenced custody and family offense proceedings against the father in 2017 that culminated in, among other things, a 2018 order that awarded her sole legal and physical custody of the child and orders of protection that directed the father to, among other things, stay away from the mother's residence. The father soon faced criminal charges for intentionally violating the order of protection issued in the mother's favor by going to her residence, and he was convicted on one count of criminal contempt in the second degree and sentenced to a jail term. Supreme Court further issued a temporary order that modified the prior custodial arrangement by suspending the father's visitation with the child and, upon the mother's petition alleging that the father had violated provisions of the order of protection by going to her residence, issued amended orders of protection (see Matter of Stephanie R. v. Walter Q., 201 A.D.3d 1135, 161 N.Y.S.3d 488 [2022] [decided herewith]).

After his release from jail, the father appeared for a June 2019 deposition in connection with his bankruptcy proceeding. A computer that was in the custody of the mother contained financial data and other material of interest to both parties and was brought to the deposition by the mother's attorney so that the father could reference the financial information in answering questions. The father absconded with the computer during a break in the questioning, and the police were called. The mother was also contacted regarding the incident and saw the father on the street with the computer while she was on her way to the scene, prompting her to exit her vehicle, pursue him on foot and call 911 to request assistance. The pursuit ended when the father boarded a public bus with the computer and left the scene.

The mother and the father thereafter filed dueling family offense petitions relating to the June 2019 incident. The mother withdrew her petition, served a reply to the father's petition and then moved for dismissal of the father's petition on various grounds, while the attorney for the child moved to dismiss the petition for failure to state a claim or, in the alternative, for summary judgment. Supreme Court granted the motions, prompting this appeal by the father.

We reverse. To begin, Supreme Court erred to the extent that it dismissed the petition because it did not view any relief to be warranted even if the father alleged a viable claim (see Lichtyger v. Franchard Corp., 18 N.Y.2d 528, 538, 277 N.Y.S.2d 377, 223 N.E.2d 869 [1966] ; Baliotti v. Walkes, 134 A.D.2d 554, 555, 521 N.Y.S.2d 453 [1987] ). The question to be resolved in that regard is "whether a petition sufficiently alleges an enumerated family offense," which requires a court to "afford the petition a liberal construction, accept the allegations contained therein as true and grant the petitioner the benefit of every favorable inference" ( Matter of Christina Z. v. Bishme AA., 132 A.D.3d 1102, 1102–1103, 19 N.Y.S.3d 347 [2015] [citations omitted]; see Matter of Craig O. v. Barbara P., 118 A.D.3d 1068, 1070, 987 N.Y.S.2d 642 [2014] ).

The father asserted in his petition and accompanying affidavit that the mother struck, grabbed and yelled insults and obscenities at him after she spotted him and chased him on foot during the June 2019 incident, behavior that upset him enough to burst into tears, request assistance from onlookers and contact the police.¹ Accepting those allegations as true, and noting that "[t]he [mother's] intent to engage in the conduct proscribed by the applicable provisions of the Penal Law may be inferred from the circumstances," the father sufficiently set forth how the mother engaged in a series of acts during the incident that constituted, at a minimum, the family offense of harassment in the second degree ( Matter of Jodi S. v. Jason T., 85 A.D.3d 1239, 1241, 925 N.Y.S.2d 211 [2011] ; see Penal Law § 240.26[1], [2] ; Matter of Amber JJ. v. Michael KK., 82 A.D.3d 1558, 1560, 920 N.Y.S.2d 448 [2011] ; Matter of Melissa K. v. Brian K., 72 A.D.3d 1129, 1132–1133, 898 N.Y.S.2d 318 [2010] ). Accordingly, the petition should not have been dismissed on that basis.

Summary judgment, "a drastic procedural device which will be found appropriate only in those circumstances when it has been clearly ascertained that there is no triable issue of fact outstanding," was similarly inappropriate ( Matter of Suzanne RR., 35 A.D.3d 1012, 1012, 826 N.Y.S.2d 785 [2006] [internal quotation marks and citations omitted]; accord Matter of Craig O. v. Barbara P., 118 A.D.3d at 1071, 987 N.Y.S.2d 642 ; see Matter of Patricia YY. v. Albany County Dept. of Social Servs., 238 A.D.2d 672, 673, 656 N.Y.S.2d 414 [1997] ). The mother denied that she had engaged in the alleged conduct, and the attorney for the...