Opinion
668 CAF 22-01971
12-22-2023
In the Matter of Stacey PYNN, Petitioner-Appellant, v. Matthew PYNN, Respondent-Respondent.
STACEY PYNN, PETITIONER-APPELLANT PRO SE. MATTHEW PYNN, RESPONDENT-RESPONDENT PRO SE. MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILDREN.
STACEY PYNN, PETITIONER-APPELLANT PRO SE.
MATTHEW PYNN, RESPONDENT-RESPONDENT PRO SE.
MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced these two family offense proceedings in September 2022 and November 2022, respectively, alleging that respondent committed numerous family offenses (see generally Family Ct Act § 812 ). Respondent moved, inter alia, to dismiss the petitions. Petitioner, pro se, now appeals from an order that, inter alia, granted respondent's motion to that extent without a hearing. We affirm.
"Family Court has jurisdiction to adjudicate family offense petitions concerning acts that constitute certain violations of the Penal Law" ( Matter of Tammy TT. v. Charles TT. , 204 A.D.3d 1336, 1336-1337, 168 N.Y.S.3d 138 [3d Dept. 2022] ). It is well settled that "[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 [2d Dept. 2016] ; see Matter of Rohrback v. Monaco , 173 A.D.3d 1774, 1774, 105 N.Y.S.3d 635 [4th Dept. 2019] ).
With respect to petitioner's September 2022 family offense petition, petitioner has not challenged on appeal the court's dispositive determination that the petition was conclusory and devoid of specificity and, therefore, failed to state a cause of action. Thus, affirmance of that part of the order concerning the September 2022 petition is warranted based on petitioner's " ‘fail[ure] to address th[at] basis for the court's decision’ " ( Papaj v. County of Erie , 211 A.D.3d 1617, 1619, 178 N.Y.S.3d 719 [4th Dept. 2022] ). In any event, although petitioner has not addressed that basis for the court's decision, we likewise conclude that the September 2022 petition did not adequately allege conduct constituting a qualifying family offense (see Matter of Jones v. Rodriguez , 209 A.D.3d 652, 653, 174 N.Y.S.3d 861 [2d Dept. 2022] ; Matter of Marino v. Marino , 110 A.D.3d 887, 887-888, 972 N.Y.S.2d 919 [2d Dept. 2013] ).
With respect to the November 2022 proceeding, respondent sought dismissal of the petition therein on, inter alia, the ground that it failed to state a cause of action. Although that ground was not the basis for the court's dismissal of the November 2022 petition, respondent properly raises it as an alternative ground for affirmance with respect to the dismissal of that petition (see Parochial Bus Sys., Inc. v. Board of Educ. of City of N.Y. , 60 N.Y.2d 539, 545-546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; York v. Frank , 209 A.D.3d 804, 806, 176 N.Y.S.3d 133 [2d Dept. 2022] ; Dutton v. Young Men ’s Christian Assn. of Buffalo Niagara , 207 A.D.3d 1038, 1044-1045, 171 N.Y.S.3d 276 [4th Dept. 2022] ). We conclude that the November 2022 petition, like the September 2022 petition, failed to state a cause of action inasmuch as it did not set forth specific factual allegations that, if proven, would establish that respondent committed a qualifying family offense (see Jones , 209 A.D.3d at 653, 174 N.Y.S.3d 861 ; Marino , 110 A.D.3d at 887-888, 972 N.Y.S.2d 919 ).
Finally, we have considered petitioner's remaining contentions and conclude that none warrants reversal or modification of the order.