| Matter of Charles E. v Frank E. |
| 2010 NY Slip Op 03514 [72 AD3d 1439] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Charles E., Appellant, v Frank E.,Respondent. |
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McCarthy, J. Appeal from an order of the Family Court of Delaware County (Becker, J.),entered August 17, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, for an order of protection.
Petitioner commenced this proceeding alleging that respondent, who is his father, committedfamily offenses necessitating an order of protection. Family Court, sua sponte, dismissed all butnine of 129 paragraphs in the amended petition. After petitioner presented his proof at a hearing,the court granted respondent's motion to dismiss the remainder of the petition. Petitioner appeals.
Petitioner initially contends that he is entitled to a reversal because Family Court deprivedhim of due process by failing to provide an opportunity to respond to the sua sponte dismissal orrespondent's motion at the hearing. The court did not specifically ask counsel to make any legalargument or respond to these actions, but the court also did not prevent counsel from speakingand counsel did not request an opportunity to respond. Even had petitioner been so deprived, heis entitled to a reversal only if the legal arguments and objections he raises would have validlyprevented dismissal of his petition. Thus, we now address the merits of his arguments.
Family Court did not err in sua sponte dismissing most of the paragraphs in the amendedpetition. To be viable under the circumstances here, the paragraphs were required to allege thatrespondent engaged in harassment of petitioner, i.e., that, "with intent to harass, annoy or alarm,"respondent engaged in a course of conduct that did alarm or seriously annoy petitioner [*2]and the conduct served no legitimate purpose (Penal Law §240.26 [3]; see Family Ct Act § 821 [1] [a]). Many of the paragraphs containedpetitioner's opinions, conclusory statements or irrelevant facts without allegations related to anyfamily offense. Some paragraphs referred to petitioner's family in general or containedallegations against individuals other than respondent. Still others alleged that respondentengaged in bad behavior or committed property crimes against petitioner, but did not allegeconduct that constituted harassment or another crime listed in Family Ct Act § 821 (1) (a).These paragraphs were properly dismissed (see Matter of Davis v Venditto, 45 AD3d 837, 838 [2007];Matter of Brennan v Anesi, 283 AD2d 693, 694-695 [2001]). In any event, the courtactually permitted petitioner to raise facts relating to some of the dismissed paragraphs at thehearing, diminishing the practical effect of the sua sponte dismissal of those paragraphs.
Family Court properly granted respondent's motion to dismiss the remainder of the amendedpetition. In a previous family offense proceeding in Kings County, petitioner alleged thatrespondent unlawfully possessed petitioner's rifle and lied to police about it, had bent petitionerover a porch railing and threatened to kill him, and had demanded that petitioner remove all ofhis property from a Brooklyn apartment immediately or petitioner would never see hisbelongings again. Because the prior petition was dismissed on the merits, Family Court correctlydetermined that the doctrine of res judicata barred petitioner from relying on any of thoseallegations (see Cramer v Sabo, 31AD3d 998, 999 [2006], lv denied 8 NY3d 801 [2007]).
Petitioner bore the burden of proving by a preponderance of the evidence that respondentcommitted a family offense (see Family Ct Act § 832; Matter of Cruz v Cruz, 55 AD3d992, 995 [2008]). Evidence at a fact-finding hearing must be competent, material andrelevant (see Family Ct Act § 834). Here, respondent had legally evicted petitionerfrom the Brooklyn apartment but allowed petitioner's property to remain in the apartment for twoyears. Respondent's letter requesting that petitioner provide a schedule for removal of hisproperty was civil, with no indication that it was intended to harass, annoy or alarm anyone, andit served a legitimate purpose of allowing respondent to empty the apartment to rent it out (see Matter of Hasbrouck v Hasbrouck,59 AD3d 621, 622 [2009]). When the parties could not agree on a schedule, otherindividuals apparently packed petitioner's belongings and moved them to a storage facility.Petitioner testified and introduced pictures to prove that several items were damaged or missing,but he provided no competent proof that respondent stole petitioner's missing property, causedthe damage or procured others to purposely damage petitioner's property. While respondent, as abailee of petitioner's property, was responsible for its safekeeping and perhaps could be liable innegligence (see Wilson v CRL Mgt.,Inc., 14 Misc 3d 231, 232-233 [2006]), negligent supervision resulting in propertydamage does not constitute the crime of harassment. Petitioner's other evidence consisted ofhearsay allegations or generalized bad behavior by respondent which did not rise to the level ofany criminal act specifically enumerated in Family Ct Act § 821 (compare Matter of Steinhilper vDecker, 35 AD3d 1101, 1102 [2006]). As petitioner did not meet his burden ofestablishing a prima facie case that respondent committed a family offense, Family Courtproperly granted respondent's motion to dismiss the petition.
Mercure, J.P., Peters, Rose and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.