Opinion
2018–00123 Docket No. O–10008–17
10-24-2018
In the Matter of Jeffery Scot SULT, appellant, v. Rachel Ellen SULT, respondent.
Jeffery Scot Sult, Valley Stream, NY, appellant pro se. DiMascio & Associates, LLP, Garden City, N.Y. (Christina L. Sittner of counsel), for respondent. Carol J. Lewisohn, Cedarhurst, NY, attorney for the children.
Jeffery Scot Sult, Valley Stream, NY, appellant pro se.
DiMascio & Associates, LLP, Garden City, N.Y. (Christina L. Sittner of counsel), for respondent.
Carol J. Lewisohn, Cedarhurst, NY, attorney for the children.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 8, the father appeals from an order of the Family Court, Nassau County (Ayesha K. Brantley, J.), dated November 20, 2017. The order, without a hearing, dismissed his family offense petition on the ground that it failed to state a cause of action.
ORDERED that the order is reversed, on the law, without costs or disbursements, the father's family offense petition is reinstated, and the matter is remitted to the Family Court, Nassau County, for further proceedings on the petition.
The parties are married but live separately. They have two children together. The father filed a petition alleging, inter alia, that following an argument over a Skype video call where the mother screamed and threatened the children, the mother went to his house and damaged, among other things, his doorbell, address number, and car. The petition also alleged that the mother had a severe alcohol addiction and that on multiple occasions over a two-year period she had physically and verbally attacked the father, screamed at the children, and physically hurt the children. In the order appealed from, the Family Court, without a hearing, dismissed the father's family offense petition on the ground that it failed to state a cause of action. The father appeals.
In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Frimer v. Frimer, 143 A.D.3d 895, 39 N.Y.S.3d 226 ; Matter of Davis v. Wright, 140 A.D.3d 753, 754, 30 N.Y.S.3d 923 ; Matter of Jordan v. Verni, 139 A.D.3d 1067, 1068, 30 N.Y.S.3d 841 ). However, "[a] family offense petition may be dismissed without a hearing where the petition fails to set forth factual allegations which, if proven, would establish that the respondent has committed a qualifying family offense" ( Matter of Brown–Winfield v. Bailey, 143 A.D.3d 707, 708, 38 N.Y.S.3d 434 ; see Matter of Davis v. Venditto, 45 A.D.3d 837, 838, 846 N.Y.S.2d 365 ). "In determining a motion to dismiss a family offense petition pursuant to CPLR 3211(a)(7), ‘the petition must be liberally construed, the facts alleged in the petition must be accepted as true, and the petitioner must be granted the benefit of every favorable inference’ " ( Matter of Xin Li v. Ramos, 125 A.D.3d 681, 682, 3 N.Y.S.3d 86, quoting Matter of Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879 ).
Here, affording the petition a liberal construction, accepting the allegations contained therein as true, and granting the father the benefit of every favorable inference, the petition adequately alleged that the mother committed the family offenses of criminal mischief and harassment in the second degree (see Family Ct Act § 821[1] ; Penal Law §§ 145.00[1], 240.26 ). The allegations set forth in the petition adequately alleged that the mother intentionally destroyed property belonging to the father (see Penal Law § 145.00[1] ). Contrary to the Family Court's determination, the father was not required to specify the value of the destroyed property (see Matter of Omobolanle O. v. Kevin J., 154 A.D.3d 442, 443, 60 N.Y.S.3d 822 ). Furthermore, the petition adequately alleged that with the intent to harass, annoy, or alarm another person, the mother engaged in a course of conduct which alarmed and seriously annoyed another person, and which served no legitimate purpose (see Penal Law § 240.26 ; Matter of Pochat v. Pochat, 125 A.D.3d 660, 661, 3 N.Y.S.3d 112 ).
RIVERA, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.