Decided and Entered:July 23, 2026

CV-23-1544 CV-23-2019 CV-24-0717

Calendar Date: May 28, 2026

Before: Garry, P.J., Fisher, Mackey, Corcoran And Ryba, JJ.

[*1]

Corcoran, J.

Appeals (1) from an order of the Family Court of Albany County (Susan Kushner, J.), entered July 3, 2023, which, in a proceeding pursuant to Family Ct Act article 8, granted respondent's motion to dismiss the petition, (2) from an order of said court, entered September 29, 2023, which, in two proceedings pursuant to Family Ct Act article 8, denied petitioner's motion to, among other things, vacate a prior order of protection, and (3) from an order of said court, entered March 11, 2024, which, in a proceeding pursuant to Family Ct Act article 8, granted respondent's motion to dismiss the petition.

These family offense proceedings arise from a longstanding conflict between petitioner and respondent, who are siblings, over the administration of their mother's estate. In April 2022, petitioner commenced a family offense proceeding alleging that respondent improperly withheld or converted his personal property. Petitioner filed a second family offense petition in July 2022 asserting similar allegations. In August 2022, Family Court issued a limited temporary order of protection directing respondent to refrain from committing any criminal offense against petitioner. In September 2022, petitioner filed a violation petition alleging that respondent violated the temporary order of protection. During an appearance in October 2022, the parties stipulated in open court to resolve the pending family offense proceedings through the issuance of a limited final order of protection, without any admission of wrongdoing by respondent. As part of that resolution, petitioner agreed to withdraw the pending violation petition.

In March 2023, petitioner filed another violation petition alleging that respondent violated the October 2022 final order of protection. Respondent moved to dismiss this violation petition for failure to state a cause of action, and Family Court granted that motion by order entered July 3, 2023.

In August 2023, petitioner moved for various relief, including (1) vacatur of the October 2022 order of protection, (2) correction of the record related to the final order of protection and (3) reconsideration of Family Court's dismissal of his March 2023 violation petition. Family Court denied those applications by order entered September 29, 2023. In the meantime, petitioner separately commenced another family offense proceeding in August 2023, which Family Court later dismissed by order entered March 11, 2024. Petitioner now appeals from the orders entered on July 3, 2023, September 29, 2023 and March 11, 2024, and we affirm.

Petitioner first argues that Family Court erred in granting respondent's motion to

dismiss the March 2023 violation petition. We disagree. "When reviewing a motion to dismiss [for failure to state a cause of action] pursuant to CPLR 3211 (a) (7), which is proper in Family Court proceedings because they are civil in nature, we afford the petition a liberal construction, accept the allegations contained therein as true, and grant [*2]the petitioner the benefit of every favorable inference" (Matter of Koska v Koska, 226 AD3d 780, 782 [2d Dept 2024] [internal quotation marks and citations omitted]; accord Matter of Marisol Y. v Steven Z., 248 AD3d 1482, 1484 [3d Dept 2026]). "The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, and that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent" (Matter of Marisol Y. v Steven Z., 248 AD3d at 1484 [internal quotation marks and citations omitted]). "Dismissal without a hearing is warranted when the petition fails to set forth sufficient facts that, if established at a hearing, would provide a basis for granting the relief sought" (id. [citation omitted]).

Here, the March 2023 violation petition alleged that in June 2022 and July 2022, respondent engaged in conduct constituting the crime of misapplication of property (see Penal Law § 165.00 [1]). As correctly noted by Family Court, respondent's alleged misconduct occurred before the issuance of the October 2022 final order of protection, such that it could not have constituted a basis for a violation of the order that had not yet been issued. Thus, even accepting the allegations as true and giving petitioner every favorable inference, the petition failed to allege conduct constituting a violation of the order of protection. Accordingly, Family Court properly dismissed the petition without a hearing.

We are likewise unpersuaded that Family Court erred in denying petitioner's August 2023 motion seeking, among other things, vacatur of the October 2022 final order of protection, a dispositional hearing or referral for prosecution pursuant to Family Ct Act § 844, correction of the record related to the order of protection and reconsideration of the order dismissing the March 2023 violation petition. Initially, Family Court properly rejected petitioner's reliance upon Family Ct Act § 844, which permits the court to "reconsider and modify" an order of protection issued in a family offense proceeding after a dispositional hearing (Family Ct Act § 844; see Family Ct Act § 841 [d]). Here, the October 2022 final order of protection was entered on consent, without a hearing and without any finding that respondent committed a family offense. Accordingly, Family Court properly construed petitioner's application, to the extent it sought reconsideration of the dismissal of the March 2023 violation petition, as one seeking renewal or reargument pursuant to CPLR 2221.

A motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" and "shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). By contrast, a motion to [*3]renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" and must "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [2], [3]). Here, petitioner did not claim that Family Court overlooked or misapprehended any controlling facts or legal principles when it dismissed the March 2023 violation petition. Rather, he claimed, for the first time, that he consented to the October 2022 order of protection based upon mistaken legal advice that he could pursue future violation proceedings arising from respondent's conduct in June 2022 and July 2022.

"Because stipulations of settlement promote judicial economy and predictability in litigation, they are favored by the courts and are generally binding on parties that have legal capacity to negotiate, do in fact freely negotiate their agreement and . . . enter the stipulation orally on the record in open court" (McAuliffe v McAuliffe, 200 AD3d 1114, 1117 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 39 NY3d 904 [2022]). "Although an order of protection indeed may be vacated upon a showing of good cause, where, as here, the order was entered upon consent, [petitioner] bore the burden of establishing fraud, collusion, mistake, accident" (Matter of Nori-Alyce Y. v Mark Y., 100 AD3d 1116, 1117 [3d Dept 2012] [internal citations omitted]) or that he was "denied the effective assistance of counsel" (Matter of Amy TT. v Ryan UU., 183 AD3d 988, 991 [3d Dept 2020]). A stipulation made in open court should be interpreted in accordance with the parties' intent and the purposes of the stipulation as reflected in the record as a whole (see Matter of Adam V. v Ashli W., 180 AD3d 1205, 1207 [3d Dept 2020]). "An application to vacate a prior . . . order is addressed to the court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion" (Matter of Amy TT. v Ryan UU., 183 AD3d at 991 [internal quotation marks and citations omitted]).

Petitioner asserts that his former counsel incorrectly advised him that by consenting to the October 2022 order of protection, he would not waive future violation petitions against respondent based upon the same underlying conduct and property disputes, and that he therefore mistakenly agreed to withdraw the pending petition and consented to the final order of protection. Initially, those allegations rest entirely upon purported off-the-record communications between petitioner and counsel and do not appear anywhere in the record, such that they are not properly before us (see Matter of Parker J. [Beth F.], 45 NY3d 344, 352-353 [2025]; Matter of Liam DD. [Jamie CC.], 244 AD3d 1625, 1626 n 1 [3d Dept 2025]). In any event, the October 2022 appearance transcript reflects that petitioner expressly raised the pending violation petition and the parties' continuing property disputes before he agreed to the resolution. Family Court [*4]explained, on the record and in petitioner's presence, that his pending violation petition would be withdrawn as part of the proposed settlement and that the family offense proceedings would be resolved through issuance of the final order of protection; the represented parties then agreed to the settlement stipulation on the record. Significantly, even after retaining different counsel, petitioner did not cite former counsel's alleged error when he opposed respondent's motion to dismiss the March 2023 violation petition, instead waiting until August 2023 to raise those allegations, without explanation or justification (see CPLR 2221 [e] [3]). Under these circumstances, Family Court properly denied petitioner's motion to vacate the order of protection. Family Court also properly denied, as moot, petitioner's request to "correct" the October 2022 final order of protection because the court already had issued a corrected order accurately identifying both docket numbers.

Finally, petitioner contends that Family Court erred in granting respondent's motion to dismiss the August 2023 family offense petition. In a family offense proceeding, the petitioner has the burden of establishing a family offense by a fair preponderance of the evidence (see Matter of Alison EE. v Stephen FF., 245 AD3d 1053, 1054 [3d Dept 2026]). "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 Anna D. v David E., 248 AD3d 1403, 1403 [3d Dept 2026] [internal quotation marks, brackets and citations omitted]; see Matter of Lashlee v Lashlee, 161 AD3d 865, 866 [3d Dept 2018]). Petitioner argues that Family Court improperly dismissed the petition on res judicata grounds because the October 2022 order of protection was entered on consent, rather than after adjudicating the merits. Even assuming that res judicata did not apply (see Matter of Stephen N. v Amanda O., 173 AD3d 1280, 1281 [3d Dept 2019], lv dismissed 34 NY3d 1033 [2019]), reversal nevertheless is unwarranted. In his August 2023 petition, petitioner alleged that respondent committed grand larceny in the third and fourth degrees by withholding his personal property in connection with the ongoing estate dispute. Petitioner maintained, both before Family Court and on appeal, that the August 2023 petition contained "13 other new allegations" distinct from those asserted in the earlier family offense and violation proceedings. However, as Family Court correctly observed, the "new" allegations repeated prior, resolved claims concerning property allegedly removed from the estate premises in June and July 2022. More importantly, the petition failed to identify or describe any items of property purportedly removed or withheld by respondent that were not already encompassed within the prior petitions and related filings. Even affording the petition a liberal construction [*5]and accepting its allegations as true, Family Court properly concluded that the petition failed to set forth factual allegations establishing a family offense, and the petition was properly dismissed without a hearing.

Garry, P.J., Fisher, Mackey and Ryba, JJ., concur.

ORDERED that the orders are affirmed, without costs.