MATTER OF PRICE v. JENKINS

2015-06507, Docket No. O-6120/15

2017 NY Slip Op 02998

IN THE MATTER OF DEIRDRE M. PRICE, Appellant, v. HOWARD JENKINS, Respondent.

Appellate Division of the Supreme Court of New York, Second Department.


Attorney(s) appearing for the Case

Ralph R. Carrieri , Mineola, NY, for appellant.

Arza Rayches Feldman , Uniondale, NY ( Steven Feldman of counsel), for respondent.

Amy L. Colvin , Huntington, NY, attorney for the child.

Before: William F. Mastro, J.P., Sandra L. Sgroi, Hector D. Lasalle, Francesca E. Connolly, JJ.


Appeal by the mother from an order of the Family Court, Nassau County (Thomas A. Rademaker, J.), dated June 24, 2015. The order dismissed, without a hearing, the mother's family offense petition against the father.

DECISION & ORDER

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Nassau County, for further proceedings on the petition, before a different Judge.

"The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court" (Matter of Acevedo v Acevedo, 145 A.D.3d 773, 774 [internal quotation marks omitted]; accord Matter of Parameswar v Parameswar, 109 A.D.3d 473, 474). "[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 Lashlee v Lashlee, 145 A.D.3d 723, 723-724, quoting Matter of Brown-Winfield v Bailey, 143 A.D.3d 707; see Family Ct Act § 812[1]; Matter of Little v Renz, 90 A.D.3d 757, 757; Matter of Davis v Venditto, 45 A.D.3d 837, 837). "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 Brown-Winfield v Bailey, 143 AD3d at 708, quoting Matter of Arnold v Arnold, 119 A.D.3d 938, 939).

Contrary to the Family Court's conclusion, construing the petition liberally and giving it the benefit of every favorable inference, the petition adequately alleged that the father had committed the family offense of harassment in the second degree against the mother and the family offenses of obstruction of breathing and assault in the third degree against the parties' child (see Family Ct Act § 812[1]; Penal Law §§ 121.11[a]; 120.00[1]; 240.26[3]). Accordingly, the court erred in dismissing the petition on the ground that the allegations do not constitute any family offense. In light of certain remarks made by the Family Court Judge during the course of the proceedings, we deem it appropriate that the family offense petition be heard and determined by a different Judge.

The parties' remaining contentions are without merit.

MASTRO, J.P., SGROI, LASALLE and CONNOLLY, JJ., concur.


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