| Matter of Smith v Howard |
| 2014 NY Slip Op 00364 [113 AD3d 781] |
| January 22, 2014 |
| Appellate Division, Second Department |
| In the Matter of CuShaun Smith,Respondent, v Ebony Howard, Appellant. |
—[*1] Daniel E. Lubetsky, Jamaica, N.Y., for respondent. Simone Gordon, Jamaica, N.Y., attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, the motherappeals from an order of protection of the Family Court, Queens County (Seiden, Ct.Atty. Ref.), dated December 17, 2012, which, upon the denial of her motion pursuant toCPLR 3211 (a) (7) to dismiss the petition for failure to state a cause of action, and uponher default in appearing for a hearing, directed her, inter alia, to stay away from her sonfor a period of one year.
Ordered that the appeal is dismissed, without costs or disbursements, except withrespect to matters which were the subject of contest (see CPLR 5511; Matter of Paulino v Camacho,36 AD3d 821, 821-822 [2007]; Katz v Katz, 68 AD2d 536, 540 [1979]);and it is further,
Ordered that the order of protection is affirmed insofar as reviewed, without costs ordisbursements.
Since the order appealed from was made upon the appellant's default, review islimited to matters which were the subject of contest before the Family Court (seeJames v Powell, 19 NY2d 249, 256 n 3 [1967]; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907[2013]; Matter of Brittany C.[Linda C.], 67 AD3d 788 [2009]; Tun v Aw, 10 AD3d 651, 651-652 [2004]), which, in thiscase, was the denial of the mother's motion pursuant to CPLR 3211 (a) (7) to dismiss thepetition for failure to state a cause of action (see Delijani v Delijani, 100 AD3d 823 [2012]; Matter of Duane S., Jr. [DuaneS.], 88 AD3d 727 [2011]; Matter of Paulino v Camacho, 36 AD3d at822).
When reviewing a motion to dismiss pursuant to CPLR 3211 (a) (7), we afford thepetition a liberal construction, accept the allegations contained therein as true and grantthe petitioner the benefit of every favorable inference (see Matter of Walton v New YorkState Dept. of Correctional Servs., 13 NY3d 475, 484 [2009]; Matter of Pamela N. v Neil N.,93 AD3d 1107, 1108-1109 [2012]). Here, the petition, filed by the father pro se,adequately alleged that the mother had committed the family offense of menacing in thethird degree against the subject child (see Penal Law § 120.15; Matter of Clark v Ormiston,101 AD3d 870 [2012]; Matter of Jeff M. v Christine N., 101 AD3d 1426, 1427[2012]; [*2]Matter of Gil v Gil, 55 AD3d 1024 [2008]).
The remaining contentions are without merit. Austin, J.P., Sgroi, Cohen andHinds-Radix, JJ., concur.