| Matter of J.A. v J.N. |
| 2012 NY Slip Op 52112(U) [37 Misc 3d 1221(A)] |
| Decided on November 9, 2012 |
| Family Court, Westchester County |
| Malone, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
In the Matter of
a Family Offense Proceeding Under Article 8 of the Family Court Act J.A., Petitioner,
against J.N., Respondent. |
PROCEDURAL HISTORY
Due to the excessive motion practice and Petitioner's changes in
attorneys, the fact-finding hearing on the underlying family offense petition filed on
September 27, 2010, commenced on October 11, 2011. The contentious and protracted
fact-finding hearing was continued on March 29, 2012 and August 20, 2012 and has
been adjourned to January [*2]7, 2013 with the
Temporary Order of Protection in effect through to the same date. On July 17, 2012,
Petitioner filed a petition alleging that Respondent violated the Temporary Order of
Protection in effect on July 4, 2012.
Now, by way of the Notice of Motion filed on August 3, 2012, Respondent, seeks to
dismiss the violation petition against him pursuant to CPLR R 3211(a) (1) and (a)(7) and
by way of the Notice of Cross Motion filed on August 8, 2012, Petitioner has countered
for a contempt finding against Respondent. On August 17, 2012 and August 20, 2012,
Respondent's attorney, Howard B. Greenberg, Esq. filed a Reply Affirmation and
Supplemental Affirmation,[FN1] respectively, in support of the motion
to dismiss and on September 14, 2012, Petitioner's attorney, Joan Moo Young, Esq. filed
her Reply Affirmation [FN2] in opposition.
In the violation petition, Petitioner alleges that on July 4,
2012, Respondent sent an email to two (2) of her email accounts in violation of the
Temporary Order of Protection in effect on this date. See, Fam. Ct. Act
§846-a.
Failure to State a Cause of Action
In considering a motion to dismiss, it is well settled that the Court must view
the allegations in the light most favorable to the petitioner. See, Hirschhorn v
Hirschhorn, 194 AD2d 768 (2nd Dept. 1993); see also Gianis v Gianis, 67 AD3d
963 (2nd Dept. 2009); Cooper v 620 Properties Associates et al, 242 AD2d
359 (2nd Dept. 1997).Here, Petitioner has alleged an offense that, if proven, would
constitute a violation of Temporary Order of Protection in effect on July 4, 2012. As
such, Respondent's motion to dismiss for failure to state a cause of action is denied with
leave to renew after Petitioner presents her case-in-chief. See, Fam. Ct. Act
§§ 812 and 846-a; CPLR R 3211(a) (7).
Documentary Evidence
Respondent also moves to dismiss the violation petition on documentary evidence grounds. See, Fam. Ct. Act §846-a and CPLR R 3211 (a) (1). For Respondent to prevail on the basis of documentary evidence, he must establish that the documents are ". . . unambiguous and of undisputed authenticity" and "conclusively establish a defense as a matter of law." See, Norment v. Interfaith Center of New York et al., 2012 NY Slip Op. [*3]06130 (2nd Dept. 2012) citing Fontanetta v. John Doe 1, 73 A.D3d 78, 86 (2nd Dept. 2010); see also Weiss v Cuddy & Fedder, 200 AD2d 665 (2nd Dept. 1994); Greenwood v Packing Corp. v Associated Telephone Design, Inc., 140 AD2d 303 (2nd Dept. 1988).
Respondent opines that the separately filed Declaration of Farnoush Saffarpour,Custodian of Records for Yahoo! Inc.,[FN3]and the exhibits, annexed to the motion, identify Respondent's internet protocol (IP) address for each of the logins to his email account for the period June 20, 2012 to July 9, 2012, and show that the email sent to Petitioner's email addresses originated in Tokyo, Japan. See, Supplemental Affirmation at paragraph 5 and Exhibits A through F annexed thereto.
Assuming, in arguendo, the IP address for Respondent's logins to his
computer on July 4, 2012 originated in Tokyo, Japan, said evidence does not in and of
itself dispose of the issuewhether Respondent sent the emails and, if he did send them,
whether such transmission was a willful violation of the Temporary Order of Protection
in effect on July 4, 2012.
Wherein Respondent's actions may be punishable by imprisonment, Petitioner failure to personally serve Respondent with the motion for contempt is fatal. See, Moore v TD Bank, 79 AD3d 989 (2nd Dept. 2010); Judiciary Law §761. Petitioner's motion to find Respondent in contempt is denied and shall be dismissed for lack of personal jurisdiction over Respondent.
ORDERED and ADJUDGED that Respondent's motion to dismiss is denied and dismissed with leave to renew; and it is further
ORDERED and ADJUDGED that Petitioner's cross motion for contempt is denied and dismissed. [*4]
THIS CONSTITUTES THE DECISION
AND ORDER OF THIS COURT.
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
COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR
THE CHILD(REN) UPON THE APPELLANT, WHICHEVER IS EARLIEST.
Dated: November 9, 2012Enter
Yonkers, New York
______________________________
HON. JANET C. MALONE
Judge of the Family Court