| Matter of Clark v Ormiston |
| 2012 NY Slip Op 08521 [101 AD3d 870] |
| December 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of Susan Clark, Appellant, v John Ormiston,Respondent. |
—[*1]
In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals(1), as limited by her brief, from so much of an order of the Family Court, Putnam County (Reitz,J.), dated December 9, 2011, as granted that branch of the respondent's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the petition for failure to state a cause of action, and (2)from an order of disposition of the same court dated December 13, 2011, which dismissed thepetition without prejudice and vacated a temporary order of protection dated October 26, 2011.
Ordered that the appeal from the order dated December 9, 2011, is dismissed, without costsor disbursements; and it is further,
Ordered that the order of disposition dated December 13, 2011, is reversed, on the law,without costs or disbursements, that branch of the respondent's motion which was pursuant toCPLR 3211 (a) (7) to dismiss the petition for failure to state a cause of action is denied, thepetition is reinstated, the order dated December 9, 2011, is modified accordingly, and the matteris remitted to the Family Court, Putnam County, for further proceedings on the petition; and it isfurther,
Ordered that pending further action by the Family Court, Putnam County, the provisions ofthe temporary order of protection dated October 26, 2011, shall remain in full force and effect.
The appeal from the intermediate order must be dismissed because it is not appealable as ofright (see Family Ct Act § 1112), and, in any event, the right of direct appealtherefrom terminated with the entry of the order of disposition (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the intermediate order are broughtup for review and have been considered on the appeal from the order of disposition (seeCPLR 5501 [a] [1]; Family Ct Act § 1118; Matter of Anna Coral DeL., 50 AD3d 792 [2008]).
The petitioner commenced this family offense proceeding alleging, inter alia, that during acourt proceeding, the respondent became irate and threw his chair violently while shouting at thejudge. The petition further alleged that while being escorted out of the courtroom, the respondentstopped in front of the petitioner while waving his hand and pointing at her and twice shouted"You better watch out, I'm going to get you!" During previous proceedings, the respondent had"muttered things toward [the petitioner] and made motions towards her."[*2]
The Family Court should have denied that branch of therespondent's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the petition for failureto state a cause of action. Liberally construing the petition, and giving it the benefit of everypossible favorable inference, the petition adequately alleged that the respondent had committedthe family offenses of harassment in the first and second degrees and disorderly conduct (seeFamily Ct Act §§ 165 [a]; 812 [1]; Penal Law §§ 240.25, 240.26,240.20 [1]; Matter of Walton v NewYork State Dept. of Correctional Servs., 13 NY3d 475, 484 [2009]; Matter of Pamela N. v Neil N., 93AD3d 1107, 1108-1110 [2012]).
The petitioner's remaining contentions are without merit or are not properly before thisCourt. Mastro, J.P., Lott, Roman and Cohen, JJ., concur.