Before the Court is a motion made in limine for a ruling on the admissibility of testimony regarding prior incidents that occurred on April 3, 2006 and March 28, 2007. Petitioner is before the Court on her third family offense proceeding which she filed against the Respondent on January 14, 2009. This petition described "the most recent incident" as occurring on December 28, 2008 and "the most serious incident" as occurring on April 3, 2006.^[FN1] Two prior family [*2]offense petitions had been filed in New York County Family Court, one on April 24, 2006,^[FN2] and one on February 14, 2008.^[FN3] Trial began on February 28, 2011 with the Petitioner' testimony. During direct examination, counsel elicited testimony from the Petitioner regarding incidents occurring from December 18, 1996 to February 3, 2010, and the three specific incidents in her petition: April 3, 2006, November 18, 2008 and December 28, 2008. Counsel for the Respondent objected to questions about the April 3, 2006 incident on the grounds that it was settled in Manhattan Family Court on a prior filing under Docket # O-2278/08. Counsel was directed to requisition the files from New York County to determine what the allegations were and how they were settled.

This issue arose again on June 16, 2011 when Petitioner's counsel attempted to return her client's attention to the events of April 3, 2006. Because Respondent's counsel had not obtained any certified records from New York County and had not filed a Bill of Particulars to clarify what other incidents were being claimed in the interval between "the most serious incident" and the "most recent incident." Although the Petitioner conceded that the issues were resolved in the prior case, her attorney argued these events were admissible in this matter "to show that it causes possibly my client to experience certain emotions," and the objection was overruled on this basis. [*3]

As the direct of the Petitioner proceeded, her attorney inquired about other prior incidents and, in the absence of a Bill of Particulars to narrow the testimony, the Petitioner was permitted to testify about a prior incident in March 2007. Respondent's counsel again objected on the same grounds, that it was an allegation in a prior petition in Manhattan that was resolved. Still without any documentation to support the basis for the Respondent's objection, and Petitioner's counsel continued to argue that the testimony was admissible to explain "any fear or upset that she may experience as a result of [the Respondent's] actions," the objection was again overruled. Respondent's counsel continued to object to any questions pertaining to the incident of March 2007 on the grounds that the matter was settled in the prior Manhattan case and the Court again advised counsel to secure the transcript.

When the case continued on June 30, 2011, Respondent's counsel had not requisitioned the files from Manhattan. On cross-examination and without objection, he showed the Petitioner a copy of a "certificate of record" for the 2008 family offense petition and inquired if the matter was settled. The Petitioner refuted that assertion saying that the matter was not settled, that she had an order of protection, but agreed there was no trial.

Although the trial could not continue on the next adjourned date of July 5, 2011, counsel gave oral arguments about the legal issues pertaining to the prior family offense petitions filed in New York County, specifically Respondent's contention that testimony about them is precluded by the doctrine of res judicata and Petitioner's contention that the testimony is admissible as "prior bad acts" and establishes a course of conduct by the Respondent which explains Petitioner's state of mind in later incidents. At the conclusion of the oral argument, copies of the Manhattan files were requisitioned by the Court in order to determine how to rule on Respondent's objections to the admissibility of testimony concerning the incidents of March 2007 and April 2006 and to determine what latitude to give Respondent's counsel in framing questions about the disposition of the prior cases.

The two prior petitions filed in Manhattan Family Court contained allegations regarding an incident on April 3, 2006. The second petition also contained an allegation about March 22, 2007. The first petition under Docket #O-5234/06 was settled on June 26, 2007 with the Respondent consenting to an order of protection without admission of wrongdoing and a suspended judgment for a period of six months. The second petition under Docket #O-02278/08 was withdrawn on March 27, 2008 evidently without prejudice as the endorsement does not reflect otherwise and no order was in the file. No motion was made to dismiss the April 3, 2006 allegation when the second petition was filed.

At the time this proceeding was filed in 2009, Article VIII of the Family Court Act did not contain a time period within which a proceeding for an order of protection must be instituted. In accordance with Section 165 of the Family Court Act, trial courts turned to CPLR 213(1) that allows an action "for which there is no limitation specifically prescribed by law" to be commenced within six years. This time frame was shortened by the appellate courts that addressed the question of how old allegations in a family offense petition may be and survive dismissal. The standard established in the First and Second Departments required the events to be "relatively contemporaneous" if they are to support the finding of a family offense and the need for an immediate order of protection (Matter of Ashley P., 31 AD3d 767, 769 [2d Dept 2006]; Swersky v Swersky, 299 AD2d 540 [2d Dept 2002]; Yoba v Yoba, 183 AD2d 418 [1st Dept. [*4]1992]). This line of cases was overruled in August 2010 when the New York Legislature amended Family Court Act §812 to direct that "[i]n any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing."^[FN4] The issue now "in family offense matters is not the age of the threat but the imminence of the danger" (Opray v Fitzharris, 84 AD3d 1092 [2d Dept 2011]). In passing this bill, one trial judge wrote, "the introducer's memorandum in support noted that domestic violence must be viewed as a video as opposed to a snapshot.' "Because family offenses have no specified statute of limitations, courts have had to evaluate each case individually to determine if a delay in filing would prevent the purposes of the act from being carried out" (Jose M. v Tatianna T., 30 Misc 3d 948 [FamCt Albany County 2011]; see also Elkins, Fosbinder & Breger, NYLDOMVIOL § 2:19 [2011]).

This amendment was not introduced with a sponsor's bill or any reports specifying when the amendment was to be effective, however the larger bill notes that the "act shall take effect immediately and shall apply to all orders of protection pending or entered on or after such effective date" (L. 2010, c. 341, § 9). Inasmuch as this petition for an order of protection was pending when this law was enacted, the unspecified allegations from December 18, 1996 to February 3, 2010, as well as the specific allegations from April 3, 2006, March 22, 2007, January 9, 2008, November 18, 2008 and December 28, 2008 can no longer be dismissed as time-barred.

The traditional litigation vehicles for claim preclusion, the doctrine of res judicata, and issue preclusion, the doctrine of collateral estoppel, are not an available defense in this case. Rule 3211(a)(5) of the New York Civil Practice Law & Rules provides that a party may move to dismiss a cause of action on the ground of collateral estoppel or res judicata. Pursuant to subdivision (e) of the Rule, any objection or defense based on either of these grounds is waived unless raised by motion or in a responsive pleading. This is because each of these doctrines is dependent upon the existence of certain circumstances and the party asserting the defense as well as the party opposing the defense have to meet differing burdens of proof in order to prevail. For these reasons CPLR 3211(e) requires that the defense be raised and decided pretrial rather than reserved until the trial and put forward in the form of an objection to the admissibility of evidence. Since the Respondent neither filed an answer to the petition nor made a pretrial motion, the defense is waived and his application to preclude testimony about the April 3, 2006 and the March 22, 2007 incidents is denied on procedural grounds.

Even if it were possible to raise the defense orally at trial to preclude testimony about certain allegations in the petition, as the Respondent did in this case, the application would have to be denied on substantive grounds. Under the estoppel doctrines of res judicata and collateral estoppel, each requires a showing that there was an identity of the parties in the present and prior litigation (Juan C. v Cortines, 89 NY2d 659 [1997]), that the claims arose out of the same transaction or series of transactions (Xiao Yang Chen v Fischer, 6 NY3d 94 [2005]), that the parties had a full and fair opportunity to contest the claims (Krista I. v Gregory I., 8 AD3d 696 [*5][3d Dept 2004]) and the prior litigation resulted in an adjudication on the merits (Charles E. v Frank E., 72 AD3d 1439 [3d Dept 2010]). On the facts of this case, there was never an adjudication on the merits for the incidents of April 3, 2006 and March 22, 2007 because the second family offense petition was withdrawn. With regard to the incident of April 3, 2006 which was pled in the initial family offense petition, there was no adjudication on the merits since that matter was concluded with the entry of an order of protection and a suspended judgment on consent of the Respondent without an admission of wrongdoing and without any stipulation by the Petitioner that she would not replead these claims in any future proceedings. Since the court did not enter any factual findings, as it does when a parent consents to the jurisdiction of the court under Section 1051(a) of the Family Court Act in Article X proceedings, no adjudication on the merits took place (Mirelle F. v Renol F., 4 Misc 3d 1011(a) [Sup Ct Queens County 2004]) and there is nothing which could affect or bind the Petitioner in the future (Metz v People, 73 Misc 2d 219 [Sup Ct Nassau County 1973]; Lockwood v Lockwood, 23 Misc 3d 679 [Fam Ct Otsego County 2009].

With regard to the remaining contentions, the Petitioner's testimony about the events of April 3, 2006 and March 22, 2007 is admissible as direct evidence in support of the claims she put forth in the instant petition. Her petition alleges a course of conduct that has been ongoing, even preceding "the most serious incident" on April 3, 2006 and going up to and including "the most recent incident" of December 28, 2008. Petitioner's testimony about the incident of April 3, 2006 is admissible as direct evidence of that claim and her testimony about the incident of March 22, 2007, in the absence of a Bill of Particulars to narrow the issues to be tried, is admissible as one of the incidents occurring between the "most serious" and the "most recent" incidents.

It is not necessary to reach the question of whether the Petitioner's testimony about the incidents of April 3, 2006 and March 22, 2007 might also be admissible as an exception to the hearsay rule since the testimony is admissible as proof of the allegations in the petition. Having reviewed the pleadings, the testimony given by the Petitioner, and the prior dockets from New York County, and having heard oral argument from counsel for the parties; and having read and considered the applicable case law identified through the Court's own research; and due deliberation having been had thereon, the motion to preclude the Petitioner's testimony about the incidents of April 3, 2006 and March 22, 2007 is denied.

Dated: December 5, 2011E N T E R :

Brooklyn, New York

__________________________________________

PAULA J. HEPNER, A.J.S.C.