Opinion
2013-10-16
In the Matter of Vincent Alfred MARINO, v. Debra MARINO, respondent.
Matthew M. Lupoli, Flushing, N.Y., for appellant.
In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Ross, J.H.O.), dated October 1, 2012, which, without a hearing, dismissed his petition for failure to state a cause of action.
ORDERED that the order is affirmed, without costs or disbursements.
The Family Court properly dismissed the petitioner's family offense petition, without a hearing, for failure to state a cause of action. Contrary to the petitioner's contention, the factual allegations set forth in his petition were insufficient to allege conduct that would constitute the offense of harassment in the second degree ( see Family Ct. Act §§ 812[1], 821[1][a]; Penal Law § 240.26[3]; Matter of Dowgiallo v. Williams, 99 A.D.3d 708, 709, 951 N.Y.S.2d 404;Matter of Price v. Jenkins, 92 A.D.3d 787, 938 N.Y.S.2d 452;Matter of Davis v. Venditto, 45 A.D.3d 837, 838, 846 N.Y.S.2d 365;Matter of Jones v. Roper, 187 A.D.2d 593, 591 N.Y.S.2d 336;cf. Matter of Little v. Renz, 90 A.D.3d 757, 934 N.Y.S.2d 331;Matter of McFadden v. McFadden, 83 A.D.3d 943, 920 N.Y.S.2d 732).