By petition dated February 27, 2008, petitioner alleged respondent committed the acts of aggravated harassment in the second degree, reckless endangerment and disorderly conduct against Petitioner's six year old child ("the subject child"). The respondent was the petitioner's stepson.

The family offense petition herein states that on or about February 22, 2008 at 7:00 p.m. respondent told the subject child "If your father comes to your birthday party he will be arrested." Petitioner alleges this statement "seriously" frightened his son and himself. The petition further alleges that a "third party" told petitioner that respondent uses drugs in the home where the subject child lives, and that respondent has been "in and out of drug treatment programs." As a result, petitioner asserts he is concerned for the subject child's "safety, mental and emotional stability".

The caption on the petition does not state that the petitioner has filed the petition on behalf of the subject child. However, the petitioner filed the petition pro se, and it is clear from reading the petition his intent was to file it on behalf of the subject child. Accordingly, the Court deems the petition having been brought on behalf of the subject child.

The movant in this motion to dismiss asserts that this Court does not have jurisdiction over the petition in that the petitioner and respondent were not "members of the same household or family", as that phrase is defined by FCA § 812, at the time the petition was filed. "Members of the same household or family" is defined in FCA §812(1)(a) as "persons related by consanguinity or [*2]affinity". It is undisputed that petitioner and respondent did fit the definition of affinity in that petitioner and respondent's mother were married, making petitioner respondent's stepfather. The question raised is whether this relationship was dissolved by petitioner's divorce at the time the petition was filed. As proof that it was, the movant annexed as an exhibit to her moving papers a Short Form Order of a decision after trial, issued by the Hon. Hope Schwartz Zimmerman, in petitioner's matrimonial action with the respondent's mother. The decision, dated February 5, 2008, grants respondent's mother a divorce on cruel and inhuman treatment grounds. However, this Court was not made aware when, if ever, a Judgment of Divorce was issued.

As a result of Judge Zimmerman's decision alone, movant argues the petitioner and respondent's mother were divorced and therefore affinity did not exist. In support of this argument, movant cites to Cary v. Fisher, 149 AD2d 890 (3d Dept. 1989). However such reliance is misplaced. In that case, the judgment of divorce existed, it just had not been recorded. Herein, the Court was not provided with proof that the Judgment of Divorce had even been signed at the time the petition was filed, nor any time since. Accordingly, the Court finds that jurisdiction exists

Movant next argues that the facts raised in the family offense petition have already been litigated in the matrimonial matter. This Court has no way to know if that is accurate, having been provided with only the decision in that case and not the pleadings or minutes. Regardless, no evidence has been presented indicating that family offenses were alleged, litigated and ruled upon in the matrimonial action. While some of the issues raised in the matrimonial action may have touched upon some of the allegations in the family offense petition, the two matters are separate proceedings with separate parties and different burdens of proof. As such, this Court finds that, based upon the evidence before it, nothing raised in the matrimonial action prevents this family offense from being litigated.

The last issue to consider is whether, in the light most favorable to the petitioner, the petition filed herein contains allegations which meet the criteria for a family offense pursuant to FCA §812. FCA §812 defines a family offense as those acts that would constitute:

disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household...

Pursuant to FCA §821 (1)(a), a petition alleging a family offense has occurred must at least allege that the respondent behaved in a way that would constitute one of the delineated acts in FCA §812. Herein, petitioner accuses respondent of behavior which would constitute "aggravated harassment in the second degree, reckless endangerment and disorderly conduct...".

Aggravated Harassment in the Second Degree is defined by Penal Law Section 240.30 as when a person: [*3]

... with intent to harass, annoy, threaten or alarm another person, he or she: 1. Either (a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or

3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or 4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.

A review of the petition filed herein yields no allegations that fall within the framework of aggravated harassment in the second degree. The only communication alleged to have occurred in the petition is an oral, face-to-face statement by respondent to the subject child that petitioner will be arrested if petitioner attends a birthday party. No subsection of Penal Law §240.30 addresses face-to-face communications.

A person commits disorderly conduct, as defined by Penal Law §240.20 when:

...when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or 5. He obstructs vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose. Pursuant to FCA §812, for the purposes of a family offense, non-public behavior may also constitute disorderly conduct.

The behavior complained of in the petition herein, that the petitioner could be arrested and that respondent uses drugs in the home, could only possibly fit within subsection (7), the creation of a hazardous or physically offensive condition for no legitimate purpose. Respondent's alleged statement regarding an arrest cannot be considered a hazardous or physically offensive condition, particularly since it is possible the statement was true.

It is conceivable that circumstances exist where the use of illegal drugs in the presence of a minor could equate to a hazardous condition. However, petitioner's allegation in the instant case is too vague and far-removed to rise to that level. Petitioner asserts that someone told him the respondent uses drugs in the home. Forgetting the hearsay and self-serving nature of this statement, there is no allegation the subject child was even present when respondent allegedly used the drugs. [*4]No date or specific instance of drug use was referenced. Petitioner fails to even state what drugs respondent was allegedly using. Accordingly, even if that allegation is assumed to be true, it is too general to form the basis of a hazardous condition.

Finally, petitioner claims respondent's conduct also constituted reckless endangerment. Reckless Endangerment in the Second Degree is defined by Penal Law §120.20 as conduct which "creates a substantial risk of serious physical injury to another person". It is essential that there is a risk of physical injury to meet the elements of this act. In Re Shaniqua W., 262 AD2d 496 (2d Dept. 1999). Nowhere in the petition does petitioner allege anyone was in danger of physical injury. It is simply too big of a leap to expect the Court to assume that based upon information provided by a "third party" that respondent is using drugs, that the subject child is, therefore, universally in danger of physical injury as a result. Accordingly, it is

ORDERED that the Movant's motion to dismiss is granted; and it is

ORDERED that the petition is dismissed and the temporary order of protection is vacated.

This constitutes the decision of the Court.

ENTER

_____________________________

HON. CONRAD D. SINGER

Judge of the Family Court

Dated: May 1, 2008

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Order mailed on [specify date(s) and to whom mailed]: _____________________________

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PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OF THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST