Pynn v. Pynn

2023 NY Slip Op 06606

IN THE MATTER OF STACEY PYNN, PETITIONER-APPELLANT, v. MATTHEW PYNN, RESPONDENT-RESPONDENT.

No. 668 CAF 22-01971

Supreme Court of New York, Fourth Department

December 22, 2023

STACEY PYNN, PETITIONER-APPELLANT PRO SE.

MATTHEW PYNN, RESPONDENT-RESPONDENT PRO SE.

MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILDREN.

PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE JJ.

Appeal from an order of the Family Court, Niagara County (Keith D Kibler, A.J.), dated November 28, 2022, in proceedings pursuant to Family Court Act article 8. The order dismissed the petitions and precluded petitioner from filing any request for relief in Family Court, Niagara County, without permission of the Court or without an attorney.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum Petitioner commenced these two family offense proceedings in September 2022 and November 2022, respectively, alleging that respondent committed numerous family offenses (see generally Family Ct Act § 812). Respondent moved, inter alia, to dismiss the petitions. Petitioner, pro se, now appeals from an order that, inter alia, granted respondent's motion to that extent without a hearing. We affirm.

"Family Court has jurisdiction to adjudicate family offense petitions concerning acts that constitute certain violations of the Penal Law" (Matter of Tammy TT. v. Charles TT., 204 A.D.3d 1336, 1336-1337 [3d Dept 2022]). It is well settled that "[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 Brown-Winfield v. Bailey, 143 A.D.3d 707, 708 [2d Dept 2016]; see Matter of Rohrback v. Monaco, 173 A.D.3d 1774, 1774 [4th Dept 2019]).

With respect to petitioner's September 2022 family offense petition, petitioner has not challenged on appeal the court's dispositive determination that the petition was conclusory and devoid of specificity and, therefore, failed to state a cause of action. Thus, affirmance of that part of the order concerning the September 2022 petition is warranted based on petitioner's" 'fail[ure] to address th[at] basis for the court's decision'" (Papaj v. County of Erie, 211 A.D.3d 1617, 1619 [4th Dept 2022]). In any event, although petitioner has not addressed that basis for the court's decision, we likewise conclude that the September 2022 petition did not adequately allege conduct constituting a qualifying family offense (see Matter of Jones v. Rodriguez, 209 A.D.3d 652, 653 [2d Dept 2022]; Matter of Marino v. Marino, 110 A.D.3d 887, 887-888 [2d Dept 2013]).

With respect to the November 2022 proceeding, respondent sought dismissal of the petition therein on, inter alia, the ground that it failed to state a cause of action. Although that ground was not the basis for the court's dismissal of the November 2022 petition, respondent properly raises it as an alternative ground for affirmance with respect to the dismissal...