Opinion
No. 0–13321–10/11A.
2012-11-9
In the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act J.A., Petitioner, v. J.N., Respondent.
Joan A. Moo Young, Esq., White Plains, for petitioner. Howard B. Greenberg, Esq., Van Leer & Greenberg, New York, for respondent.
Joan A. Moo Young, Esq., White Plains, for petitioner. Howard B. Greenberg, Esq., Van Leer & Greenberg, New York, for respondent.
JANET C. MALONE, J.
PROCEDURAL HISTORY
Due to the excessive motion practice and Petitioner's changes in attorneys, the fact-finding hearing on the underlying family offense petition filed on September 27, 2010, commenced on October 11, 2011. The contentious and protracted fact-finding hearing was continued on March 29, 2012 and August 20, 2012 and has been adjourned to January 7, 2013 with the Temporary Order of Protection in effect through to the same date. On July 17, 2012, Petitioner filed a petition alleging that Respondent violated the Temporary Order of Protection in effect on July 4, 2012.
Now, by way of the Notice of Motion filed on August 3, 2012, Respondent, seeks to dismiss the violation petition against him pursuant to CPLR R 3211(a)(1) and (a)(7) and by way of the Notice of Cross Motion filed on August 8, 2012, Petitioner has countered for a contempt finding against Respondent. On August 17, 2012 and August 20, 2012, Respondent's attorney, Howard B. Greenberg, Esq. filed a Reply Affirmation and Supplemental Affirmation, respectively, in support of the motion to dismiss and on September 14, 2012, Petitioner's attorney, Joan Moo Young, Esq. filed her Reply Affirmation in opposition.
The Replies were fully captioned respectively as: “Attorneys Reply Affirmation in Further Support of Motion to Dismiss Violation Petition: Documentary Evidence Conclusively Warrants Dismissal of Violation Petition” and “Attorney's Supplemental Affirmation in Further Support of Motion to Dismiss Violation Petition: Subpoenaed Evidence conclusively Warrants Dismissal of Violation Petition.”
The Reply was fully captioned Reply Affirmation in opposition to the motion to dismiss and the “Supplemental Submission.”
RESPONDENT'S MOTION TO DISMISS
In the violation petition, Petitioner alleges that on July 4, 2012, Respondent sent an email to two (2) of her email accounts in violation of the Temporary Order of Protection in effect on this date. See,Fam. Ct. Act § 846–a. Failure to State a Cause of Action
In considering a motion to dismiss, it is well settled that the Court must view the allegations in the light most favorable to the petitioner. See, Hirschhorn v. Hirschhorn, 194 A.D.2d 768 (2nd Dept.1993); see also Gianis v. Gianis, 67 AD3d 963 (2nd Dept.2009); Cooper v. 620 Properties Associates et al, 242 A.D.2d 359 (2nd Dept.1997). Here, Petitioner has alleged an offense that, if proven, would constitute a violation of Temporary Order of Protection in effect on July 4, 2012. As such, Respondent's motion to dismiss for failure to state a cause of action is denied with leave to renew after Petitioner presents her case-in-chief. See,Fam. Ct. Act §§ 812 and 846–a; CPLR R 3211(a)(7). Documentary Evidence
Respondent also moves to dismiss the violation petition on documentary evidence grounds. See,Fam. Ct. Act § 846–a and CPLR R 3211(a)(1). For Respondent to prevail on the basis of documentary evidence, he must establish that the documents are “... unambiguous and of undisputed authenticity” and “conclusively establish a defense as a matter of law.” See, Norment v. Interfaith Center of New York et al., 2012 N.Y. Slip Op. 06130 (2nd Dept.2012) citing Fontanetta v. John Doe 1, 73 A.D3d 78, 86 (2nd Dept.2010); see also Weiss v. Cuddy & Fedder, 200 A.D.2d 665 (2nd Dept.1994); Greenwood v Packing Corp. v. Associated Telephone Design, Inc., 140 A.D.2d 303 (2nd Dept.1988).
Respondent opines that the separately filed Declaration of Farnoush Saffarpour, Custodian of Records for Yahoo! Inc., and the exhibits, annexed to the motion, identify Respondent's internet protocol (IP) address for each of the logins to his email account for the period June 20, 2012 to July 9, 2012, and show that the email sent to Petitioner's email addresses originated in Tokyo, Japan. See, Supplemental Affirmation at paragraph 5 and Exhibits A through F annexed thereto.
Initially, Respondent attached as Exhibits to his motion, an uncertified copy of a print out of a Yahoo! login activity sheet for the period June 20, 2012 to July 9, 2012; a copy of the messages sent from the Yahoo! Account for the period June 14, 2012 to July 20, 2012; and copies of various internet and newspaper articles regarding the breach of Yahoo! security on July 11, 2012. See, Respondent's Motion at Exhibits B–F.
Assuming, in arguendo, the IP address for Respondent's logins to his computer on July 4, 2012 originated in Tokyo, Japan, said evidence does not in and of itself dispose of the issue whether Respondent sent the emails and, if he did send them, whether such transmission was a willful violation of the Temporary Order of Protection in effect on July 4, 2012.
Based on the foregoing, Respondent has failed to meet his evidentiary burden and so his motion to dismiss the violation petition on the basis of documentary evidence is denied and dismissed with leave to renew after Petitioner presents her case-in-chief.
PETITIONER'S CROSS MOTION FOR CONTEMPT
Wherein Respondent's actions may be punishable by imprisonment, Petitioner failure to personally serve Respondent with the motion for contempt is fatal. See, Moore v. TD Bank, 79 AD3d 989 (2nd Dept.2010); Judiciary Law § 761. Petitioner's motion to find Respondent in contempt is denied and shall be dismissed for lack of personal jurisdiction over Respondent.
Accordingly, it is hereby
ORDERED and ADJUDGED that Respondent's motion to dismiss is denied and dismissed with leave to renew; and it is further
ORDERED and ADJUDGED that Petitioner's cross motion for contempt is denied and dismissed.
THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD(REN) UPON THE APPELLANT, WHICHEVER IS EARLIEST.