On February 8, 2024, the petitioner M.H. (the "petitioner" or "M.H.") filed a Family Court Act ("FCA") Article 8 family offense petition against the respondent J.H. (the "respondent" or "J.H.") on behalf of their child in common, A.H. ("A.H.") (dob xx/xx/2015) and requests an Order of Protection pursuant to FCA § 842. The respondent now moves for an Order granting her summary judgment dismissing the family offense petition. She also moves for an Order granting her $25,000 in counsel fees should the action move to a hearing, and $12,500 should the matter be dismissed. For the reasons set forth below, the respondent's motion is denied in its entirety.

The family offense petition alleges as follows. The petitioner and the respondent are married and A.H. is their child in common. The respondent committed family offenses against the petitioner and A.H. which constitute attempted assault, assault in the second or third degree, aggravated harassment in the second degree, harassment in the first or second degree, disorderly conduct, menacing in the second or third degree, reckless endangerment, stalking and criminal mischief. Specifically, on February 5, 2024, A.H. came home from school after spending the weekend with the respondent. Upon entering the petitioner's home, A.H. rushed towards the petitioner to inform him that on February 1, 2024, he was violently attacked by the respondent while they were driving in the car. A.H. had just left therapy, and they were driving to the [*2]respondent's home. A.H. told the respondent how much he missed the petitioner and when she got to a red light, she turned around, grabbed A.H.'s arm and squeezed it so hard that it left black and blue marks. A.H. has advised the respondent on several occasions that he missed the petitioner, but instead of allowing him to call or see the petitioner, she hit A.H. On at least one occasion, the respondent hit A.H. on the side of his head, specifically on his ear, and the respondent hit him so hard that his ear was ringing for hours. On another occasion, the respondent karate chopped A.H.'s neck. In or around mid-January 2024, when A.H. returned to the petitioner's home after a visit with the respondent, A.H. told the petitioner that the respondent hit him on his bottom until he smiled for a picture. Additionally, A.H. told ACS that when the respondent gets angry with him, she locks him out of the apartment and that she locks herself in her bedroom. Since September 2023, there have been at least four incidents while A.H. was riding in the respondent's car, but the police were never called. Further, the respondent curses at A.H. in Serbian, which is the language they use to communicate, and the respondent calls A.H. a "piece of garbage." A.H. has learned all the curse words he knows from the respondent. The respondent threatened A.H. with physical abuse if he spoke to the petitioner for more than one or two minutes on face time. A.H. informed the petitioner that when he refuses to go figure skating, the respondent hits him. A.H. told the petitioner that he is afraid of the respondent because she is unpredictable and she hits him. On occasion, the respondent has threatened to abscond with A.H. to Serbia.

The relevant facts and procedural history of this case are as follows. On February 9, 2024, the day after the petitioner filed the family offense petition on behalf of A.H., the Administration for Children's Services ("ACS") filed a FCA Article 10 neglect petition against the respondent on behalf of A.H., which temporarily stayed the family offense proceeding. The neglect petition alleged that the respondent neglected A.H. by failing to provide him with proper supervision or guardianship based on allegations of excessive corporal punishment. Specifically, the neglect petition alleged as follows. On February 1, 2024, the respondent hit A.H. on his right arm resulting in a bruise. On February 6, 2024, A.H. requested an ice pack for his bruised arm from the school nurse. On February 7, 2024, ACS Child Protective Specialist M.F.P. ("CPS") observed a bruise on A.H.'s right inner arm, which A.H. attributed to the respondent hitting him. A.H. told CPS that he is afraid of the respondent because she has hit him and slapped him many times in the past.

At the fact-finding hearing on the neglect petition, ACS introduced into evidence A.H.'s birth certificate, an Oral Report Transmittal ("ORT") dated February 6, 2024, certified and delegated school nurse records and a photograph of A.H.'s arm taken on February 7, 2024, and offered the testimony of CPS. At the close of ACS' case, the respondent introduced into evidence the curriculum vitae of Dr. A.M. ("Dr. A.M."), photographs and videos of A.H. from the days following the February 1, 2024 incident alleged in the neglect petition, and offered the testimonies of Dr. A.M. and the respondent. At the conclusion of the fact-finding hearing, the Court found that ACS failed to establish, by a preponderance of the evidence, that the respondent neglected A.H., as defined in Article 10 of the FCA. Initially, the Court found that ACS failed to prove that the respondent inflicted excessive corporal punishment on A.H. prior to February 1, 2024 as no evidence was presented in support of those allegations. Additionally, the Court found that ACS failed to prove that the February 1, 2024 incident alleged in the neglect petition actually occurred based on the testimonies of Dr. A.M. and the respondent. Finally, the Court found that even if ACS proved that the February 1, 2024 incident actually occurred, "evidence of [*3]one isolated incident, in which J.H. lost her temper and spontaneously grabbed or hit A.H.'s arm, resulting in relatively mild physical injury, is not sufficient to sustain a finding of neglect under the law" (Matter of A.H. (J.H.), 85 Misc 3d 1231(A) at *6-7 [Fam. Ct., New York County, 2025]).

Relying on this Court's decision dismissing the neglect petition brought against the respondent, the respondent now moves for summary judgment dismissing the family offense petition based on the doctrine of collateral estoppel. Additionally, the respondent moves for an Order directing the petitioner to pay her counsel fees.

As an initial matter, that portion of the respondent's motion for summary judgment dismissing the family offense petition based on the doctrine of collateral estoppel is denied. It is well-settled that the Family Court is authorized to grant summary judgment dismissing a family offense proceeding based on the doctrine of collateral estoppel (see In re Darren S., 133 AD2d 534, 535 [1st Dept 2015]). However, summary judgment based on the doctrine of collateral estoppel will only be granted if it is established that:

"(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits."

(Conason v Megan Holding, LLC, 25 NY3d 1, 17 [2015]). Unless there is privity, "the party against whom claim preclusion is sought must also have been a party to the prior litigation" (Aspen Specialty Insurance Company v RLI Insurance Company, Inc., 194 AD3d 206, 213 [1st Dept 2021]). "A determination whether the first action or proceeding genuinely provided a full and fair opportunity requires consideration of the realities of the [prior] litigation, including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him" (Ryan v New York Telephone Co., 62 NY2d 494, 501 [1984] [internal quotations and citations omitted]).

The respondent's motion for summary judgment dismissing the family offense petition based on the doctrine of collateral estoppel is denied as the respondent has failed to establish that the issues in this family offense proceeding and in the neglect proceeding are identical. Although both the family offense petition and the neglect petition allege an incident that occurred on February 1, 2024 when the respondent grabbed or hit A.H.'s arm, resulting in a bruise, the family offense petition alleges other conduct by the respondent which is not specifically included in the neglect petition. Indeed, the family offense petition includes allegations that the respondent hit A.H. on occasions other than February 1, 2024, that she karate chopped A.H.'s neck and that she threatened A.H. with abuse, none of which was alleged in the neglect petition.

Additionally, the respondent's motion for summary judgment dismissing the family offense petition based on collateral estoppel is denied on the ground that the petitioner, the party against whom claim preclusion is sought, did not have a full and fair opportunity to litigate in the neglect proceeding. The parties to the neglect proceeding were ACS as the petitioner, J.H. as the respondent and A.H. as the subject child. It is undisputed that the petitioner was not a party to the neglect proceeding as he was the non-respondent father. As a non-party to the neglect proceeding, he therefore had no control over how the proceeding was litigated, what evidence was introduced at the fact-finding or what witnesses were called during the fact-finding. [*4]Additionally, the respondent has not established that the petitioner was in privity with ACS, the petitioner in the neglect proceeding, and there is no basis to make such a finding.

Further, that portion of the respondent's motion for an Order directing the petitioner to pay her counsel fees is denied as premature. Pursuant to FCA § 842(f), if the Court issues or enforces a final order of protection in a case brought pursuant to Article 8 of the FCA, the order may require the petitioner or the respondent "to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order." However, as it is undisputed that the Court has not yet determined the petitioner's right to a final order of protection in this matter, any request for counsel fees is premature. The respondent may renew her request for counsel fees at the conclusion of the fact-finding on the family offense petition.

Finally, the respondent's argument, made for the first time on reply, that the family offense petition should be dismissed on the ground that the allegations in the petition are not pled with sufficient specificity, is without merit. As an initial matter, this argument was improperly made for the first time on reply and therefore, should not be considered (see Azzopardi v American Blower Corp., 192 AD2d 453 [1st Dept 1993]). However, even if the Court considered the respondent's argument, it is still without merit as the Court finds that the allegations in the petition are pled with sufficient specificity. Although the petition includes allegations made about specific incidents that do not include a date or time, the allegations were made by an eight-year-old child who might not have been aware of the exact dates and times the alleged incidents occurred. Additionally, the petition does include some specific dates and timeframes so as to put the respondent on sufficient notice of the claims being made against her.

Based on the foregoing, the respondent's motion is denied in its entirety. This constitutes the decision and order of the Court.