Opinion
2011-10-26
In the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act.MABEL R., Petitioner, v. RAYSHAWN D., Respondent.
Diana H. Kelly, Jamaica, for petitioner. Stefanie A. Miller, DC 37 Employees Legal Services, New York, for respondent.
Diana H. Kelly, Jamaica, for petitioner. Stefanie A. Miller, DC 37 Employees Legal Services, New York, for respondent.
JOHN M. HUNT, J.
Respondent has moved for dismissal of this family offense proceeding upon the ground that the Family Court lacks subject matter jurisdiction in this case (Civil Practice Law and Rules § 3211[a][2] ). Respondent has also moved for dismissal of the petition on the ground that it fails to state a cause of action in accordance with Civil Practice Law and Rules § 3211(a)(7).
By petition filed pursuant to Family Court Act § 821 on August 2, 2011 the petitioner, Mabel R., alleges that Rayshawn D. is her grandson, and that:
I suffered a stroke [in] February 2009. After that time my health went down. I am now in a wheel chair now (sic) and can't speak very well. During the time I was in rehab home I left Mr. B. in charge of my house, as I had for the past 5 years he had been with me. During that time I was very sick and didn't know what was going on. My youngest daughter and her son (Rayshawn) drove Mr. B. away and start[ed] drawing large sums of money from my life saving account and from my checking account without my consent to pay their bills. After almost a year, Mr. B. and I got back together and I found out. * * * [R]espondent [t]ook almost $7,000.00 from my checking account to pay his car payments, get his car out of repo, pay his cell phone bill, [his] cable bill. This was being done from May 2010 to July 2011. Mr. B. had tr[ied] to get the banks to block the bank accounts but they didn't, until I started to get my bank records and cashed checks in [Rayshawn's] name. When I found out, I put my daughter out (his mother). Since that time I ask him to leave, get him a place to stay, [but] he won't.
Petitioner has not filed a criminal complaint concerning the incidents alleged in the family offense petition, and she requests that this court issue an order of protection against the respondent which directs that he, inter alia, commit no family offenses against her and that he stay away from her and her home, and that he not contact her.
Respondent has moved for dismissal of the petition based upon his claim that petitioner's failure to allege facts which would constitute a family offense under article 8 deprives the Court of “subject matter jurisdiction”. This branch of the motion is denied.
“The question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by Constitution or statute, to entertain the case before it” ( Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718, 658 N.Y.S.2d 205, 680 N.E.2d 578; see also, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793, 225 N.E.2d 503; Lacks v. Lacks, 41 N.Y.2d 71, 75–76, 390 N.Y.S.2d 875, 359 N.E.2d 384; Ballard v. HSBC Bank USA, 6 N.Y.3d 658, 663, 815 N.Y.S.2d 915, 848 N.E.2d 1292; United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860; Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097). Family offense proceedings commenced in the Family Court are civil proceedings ( Matter of Richardson v. Richardson, 80 A.D.3d 32, 39–41, 910 N.Y.S.2d 149), and jurisdiction over such proceedings is specifically granted to the Family Court by both Constitution and statute (N.Y. Const., art. VI, § 13; Fam. Ct. Act §§ 115[e]; 812[1]; People v. Williams, 24 N.Y.2d 274, 278, 300 N.Y.S.2d 89, 248 N.E.2d 8; People v. Nuernberger, 25 N.Y.2d 179, 182, 303 N.Y.S.2d 74, 250 N.E.2d 352).
Concurrent jurisdiction over family offenses is granted to the criminal courts as the family offenses enumerated in article 8 of the Family Court Act constitute offenses under the Penal Law (Fam. Ct. Act §§ 115[e]; 812[1], [2][a], [b], [c]; Criminal Procedure Law §§ 100.07; 530.11[1]; People v. Wood, 95 N.Y.2d 509, 512, 513, 719 N.Y.S.2d 639, 742 N.E.2d 114; People v. Spickerman, 307 A.D.2d 774, 776, 762 N.Y.S.2d 470, lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 408, 799 N.E.2d 631).
Respondent's claim that the Family Court lacks subject matter jurisdiction is misplaced. There is “a clear distinction between a court's competence to entertain an action and its power to render a judgment on the merits” in a particular case ( Lacks at 75, 390 N.Y.S.2d 875, 359 N.E.2d 384). While the “[a]bsence of competence to entertain an action deprives the court of subject matter jurisdiction'; absence of power to reach the merits does not” ( id.; see Copeland v. Salomon, 56 N.Y.2d 222, 227, 451 N.Y.S.2d 682, 436 N.E.2d 1284; Matter of Renee XX. v. John ZZ., 51 A.D.3d 1090, 1092, 857 N.Y.S.2d 770; Matter of Sean W., 87 A.D.3d 1318, 930 N.Y.S.2d 700). It is for that very reason that claims relating to subject matter jurisdiction are never waived and may be raised after judgment ( Lacks at 75, 390 N.Y.S.2d 875, 359 N.E.2d 384; Fry at 718, 658 N.Y.S.2d 205, 680 N.E.2d 578), while arguments relating to non-jurisdictional “claim-processing rules” ( Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 1203, 179 L.Ed.2d 159), will be deemed to have been waived if not asserted prior to judgment ( Arbaugh at 506–507, 126 S.Ct. 1235; Matter of Brayanna G., 66 A.D.3d 1375, 1376, 891 N.Y.S.2d 565, lv. denied 13 N.Y.3d 714, 2010 WL 92458).
The Court has also considered respondent's argument that the petition should be dismissed on the ground that its allegations do not establish, if true, that he committed one or more of the family offenses set forth in Family Court Act § 812(1). “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. Courts must accept the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 228, 928 N.Y.S.2d 647, 952 N.E.2d 463; see also, Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Goshen v. Mutual Life Insurance Company of New York, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” ( EBC I, Inc. at 19, 799 N.Y.S.2d 170, 832 N.E.2d 26; International Oil Field Supply Services Corp. v. Fadeyi, 35 A.D.3d 372, 375, 825 N.Y.S.2d 730; Ginsburg Development Companies, LLC v. Carbone, 85 A.D.3d 1110, 1111, 926 N.Y.S.2d 156).
Applying the proper standard of review, the family offense petition before the Court alleges that the parties have a qualifying family relationship, and that petitioner is a wheelchair-bound senior citizen who has suffered significant physical and speech impairments as the result of a stroke which occurred in 2009. Petitioner entered a rehabilitation facility for treatment after the stroke and she remained confined for approximately one year. Petitioner left her friend in charge of her property during the period of her rehabilitation and confinement, but beginning in May 2010 and until July 2011, respondent and his mother, the petitioner's adult daughter, proceeded to take control of petitioner's house and loot her bank accounts. Petitioner's daughter has since left petitioner's home at her request, but respondent refuses to depart, notwithstanding petitioner's request that he do so.
While petitioner's claims regarding the misappropriation or theft of her property do not themselves constitute family offenses within the meaning of Family Court Act § 812(1) ( Matter of Steinhilper ex rel. Steinhilper v. Decker, 35 A.D.3d 1101, 1102, 827 N.Y.S.2d 738; Matter of Charles E. v. Frank E., 72 A.D.3d 1439, 1441, 899 N.Y.S.2d 464), competent evidence as to those occurrences may be admitted at the fact-finding hearing (Fam. Ct. Act § 834). The allegations in this case consist of more than the property claims alleged in Steinhilper and Charles E. which were found to be insufficient to support a family offense petition. Here petitioner alleges that respondent and his mother had misappropriated or stolen her property while she was incapacitated by a stroke and unable to look after her own affairs. Petitioner returned to her house still physically impaired and ordered respondent to leave the premises, and he has refused to do so.
The protection of elderly persons from abuse and exploitation is a matter of significant public concern. “[E]lder abuse, including the financial exploitation of elderly individuals who have become mentally incapacitated, is an often well hidden problem, in part because the perpetrator of such conduct is in many cases a member of the victim's family” ( Campbell v. Thomas, 73 A.D.3d 103, 104–105, 897 N.Y.S.2d 460 (internal citation omitted); see also, Boyce v. Fernandes, 77 F.3d 946, 948 [7th Cir.1996] ). While petitioner's age and physical disabilities are not determinative as to whether respondent committed a family offense, these factors are certainly relevant, and may be considered in conjunction with the other evidence adduced at trial.
Accordingly, as the allegations in the petition may constitute a family offense, including Harassment in the Second Degree under Penal Law § 240.26(3) ( e.g., Matter of Hagopian v. Hagopian, 66 A.D.3d 1021, 1022, 887 N.Y.S.2d 682; Matter of Chadwick F. v. Hilda G., 77 A.D.3d 1093, 1094, 909 N.Y.S.2d 577, lv. denied 16 N.Y.3d 703, 2011 WL 446450; Matter of Amber JJ. v. Michael KK., 82 A.D.3d 1558, 1559–1560, 920 N.Y.S.2d 448), the branch of the motion to dismiss for failure to state a cause of action must be denied ( Matter of Hirsh v. Stern, 74 A.D.3d 967, 967–968, 902 N.Y.S.2d 655).
This constitutes the decision and order of the Court.