Opinion
2021–06972 Docket No. O–20114–19
12-07-2022
In the Matter of Younes RIYAD, etc., appellant, v. Rajaa ABDELMOUMEN, respondent.
Elliot Green, Brooklyn, NY, for appellant. Diana Kelly, Jamaica, NY, for respondent.
Elliot Green, Brooklyn, NY, for appellant.
Diana Kelly, Jamaica, NY, for respondent.
BETSY BARROS, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, Younes Riyad appeals from an order of dismissal of the Family Court, Queens County (Adetokunbo O. Fasanya, J.), dated September 8, 2021. The order of dismissal, without a hearing, granted the motion of Rajaa Abdelmoumen pursuant to CPLR 3211(a) to dismiss the petition, and dismissed the petition for failure to state a cause of action without prejudice.
ORDERED that the order of dismissal is affirmed, without costs or disbursements.
The parties are the parents of a child born in 2017. By order dated August 9, 2019, the Family Court awarded sole custody of the child to Rajaa Abdelmoumen (hereinafter the mother), with parental access to Younes Riyad (hereinafter the father). In October 2019, the father commenced this family offense proceeding on behalf of the child against the mother. The mother moved pursuant to CPLR 3211(a)(4), (5), and (7) to dismiss the petition. In an order of dismissal dated September 8, 2021, the court, without a hearing, granted the mother's motion and dismissed the petition for failure to state a cause of action without prejudice. The father appeals. We affirm.
"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 ). "In determining whether a petition alleges an enumerated family offense, the petition must be liberally construed, the facts alleged in the petition must be accepted as true, and the petitioner must be granted the benefit of every favorable inference" ( Matter of Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879 ).
Here, liberally construing the allegations in the family offense petition and giving the father the benefit of every possible favorable inference, the petition was conclusory and failed to allege conduct by the mother constituting a family offense (see Family Court Act § 812 ; Matter of Lashlee v. Lashlee, 145 A.D.3d 723, 724, 43 N.Y.S.3d 419 ). Accordingly, the Family Court properly dismissed the petition without a hearing.
Furthermore, contrary to the father's further contention, the Family Court providently exercised its discretion in denying the father's oral application for leave to amend the petition. "Leave to amend a family offense petition ‘should be freely granted so long as the amendment is not plainly lacking in merit and there is no significant prejudice to the nonmoving party’ " ( Matter of Price v. Jenkins, 149 A.D.3d 954, 955, 52 N.Y.S.3d 456, quoting Matter of Shazzi T. v. Ernest G., 135 A.D.3d 410, 410, 24 N.Y.S.3d 12 ). Here, the father's application was made during arguments on the mother's motion and failed to set forth the manner in which he proposed to amend the petition.
BARROS, J.P., MILLER, DOWLING and WARHIT, JJ., concur.