Opinion
668 CAF 19-00933
07-17-2020
In the Matter of Marilyn K. KOWALEWSKI, Petitioner-Respondent, v. Andriana Naqua Denice RUSHING, Respondent-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR RESPONDENT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: Petitioner commenced this Family Court Act article 8 proceeding, alleging in her petition that respondent committed the family offenses of aggravated harassment in the second degree, assault in the second or third degree, and menacing in the second or third degree and seeking, among other things, an order of protection. Family Court determined that respondent committed the family offense of disorderly conduct, an offense not specified in the petition and, inter alia, issued an order of protection. Respondent appeals.
Here, the petition does not adequately plead that respondent committed disorderly conduct, and the court therefore erred in refusing to dismiss the petition (see Matter of Rohrback v. Monaco , 173 A.D.3d 1774, 1774, 105 N.Y.S.3d 635 [4th Dept. 2019] ; see generally Matter of Brazie v. Zenisek , 99 A.D.3d 1258, 1259, 951 N.Y.S.2d 458 [4th Dept. 2012] ).
In light of our determination, we decline to reach respondent's remaining contentions.