Opinion
2014-01-22
In the Matter of CuShaun SMITH, respondent, v. Ebony HOWARD, appellant.
Larry S. Bachner, Jamaica, N.Y., for appellant. Daniel E. Lubetsky, Jamaica, N.Y., for respondent.
Larry S. Bachner, Jamaica, N.Y., for appellant. Daniel E. Lubetsky, Jamaica, N.Y., for respondent.
Simone Gordon, Jamaica, N.Y., attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, the mother appeals from an order of protection of the Family Court, Queens County (Seiden, Ct. Atty. Ref.), dated December 17, 2012, which, upon the denial of her motion pursuant to CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action, and upon her default in appearing for a hearing, directed her, inter alia, to stay away from her son for a period of one year.
ORDERED that the appeal is dismissed, without costs or disbursements, except with respect to matters which were the subject of contest ( see CPLR 5511; Matter of Paulino v. Camacho, 36 A.D.3d 821, 821–822, 828 N.Y.S.2d 496; Katz v. Katz, 68 A.D.2d 536, 540, 418 N.Y.S.2d 99); and it is further,
ORDERED that the order of protection is affirmed insofar as reviewed, without costs or disbursements.
Since the order appealed from was made upon the appellant's default, review is limited to matters which were the subject of contest before the Family Court ( see James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741; Matter of Angie N.W. [ Melvin A.W.], 107 A.D.3d 907, 968 N.Y.S.2d 125; Matter of Brittany C. [ Linda C.], 67 A.D.3d 788, 891 N.Y.S.2d 80; Tun v. Aw, 10 A.D.3d 651, 651–652, 782 N.Y.S.2d 96), which, in this case, was the denial of the mother's motion pursuant to CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action ( see Delijani v. Delijani, 100 A.D.3d 823, 954 N.Y.S.2d 567; Matter of Duane S., Jr. [ Duane S.], 88 A.D.3d 727, 930 N.Y.S.2d 474; Matter of Paulino v. Camacho, 36 A.D.3d at 822, 828 N.Y.S.2d 496).
When reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), we afford the petition a liberal construction, accept the allegations contained therein as true and grant the petitioner the benefit of every favorable inference (see Matter of Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d 475, 484, 893 N.Y.S.2d 453, 921 N.E.2d 145; Matter of Pamela N. v. Neil N., 93 A.D.3d 1107, 1108–1109, 941 N.Y.S.2d 751). Here, the petition, filed by the father pro se, adequately alleged that the mother had committed the family offense of menacing in the third degree against the subject child (see Penal Law § 120.15; Matter of Clark v. Ormiston, 101 A.D.3d 870, 954 N.Y.S.2d 903; Matter of Jeff M. v. Christine N., 101 A.D.3d 1426, 1427, 957 N.Y.S.2d 758; Matter of Gil v. Gil, 55 A.D.3d 1024, 870 N.Y.S.2d 468).
The remaining contentions are without merit. AUSTIN, J.P., SGROI, COHEN and HINDS–RADIX, JJ., concur.