Opinion
8952
04-11-2019
In re LATAVA P., Petitioner–Appellant, v. CHARLES W., Respondent–Respondent.
Geoffrey P. Berman, Larchmont, for appellant.
Geoffrey P. Berman, Larchmont, for appellant.
Friedman, J.P., Sweeny, Webber, Gesmer, Singh, JJ.
Order, Family Court, Bronx County (Aija Tingling, J.), entered on or about June 5, 2017, which granted respondent's motion to dismiss the family offense petition, unanimously affirmed, without costs.
Construing the petition liberally and giving it the benefit of every favorable inference (see Matter of Christine P. v. Machiste Q., 124 A.D.3d 531, 532, 2 N.Y.S.3d 102 [1st Dept. 2015] ), we find that the allegations in the petition concerning incidents that occurred in January 2017 were insufficient to allege the family offense of harassment in the second degree because they do not involve a "course of conduct" or repeated acts that would "seriously annoy" the petitioner and serve no legitimate purpose ( Penal Law § 240.26[3] ; see McGuffog v. Ginsberg, 266 A.D.2d 136, 699 N.Y.S.2d 26 [1st Dept. 1999] ). There is no allegation of damage to physical property to support a finding of criminal mischief in the fourth degree ( Penal Law § 145.00[1] ), and the allegations were too vague to allege stalking in the fourth degree ( Penal Law § 120.45[1] ; Matter of Kimberly O. v. Jahed M., 152 A.D.3d 441, 58 N.Y.S.3d 367 [1st Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4654053 [2017] ).
The allegations concerning an incident that occurred four years earlier also were properly dismissed because, although a family offense petition cannot be dismissed "solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition" ( Family Court Act § 812[1] ), the petition failed to sufficiently plead conduct constituting a pattern of imminent and ongoing danger to the mother (see Matter of Opray v. Fitzharris, 84 A.D.3d 1092, 1093, 924 N.Y.S.2d 421 [2d Dept. 2011] ; cf. Matter of Monwara G. v. Abdul G., 153 A.D.3d 1174, 60 N.Y.S.3d 166 [1st Dept. 2017] ).