Tammy TT. v. Charles TT.

2022 NY Slip Op 02844

In the Matter of Tammy TT., Appellant, v. Charles TT., Respondent.

No. 532822

Supreme Court of New York, Third Department

April 28, 2022

Calendar Date: March 25, 2022

Lisa K. Miller, McGraw, for appellant.

Shaw & Murphy, PLLC, Ithaca (Liam G.B. Murphy of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Colangelo and Ceresia JJ.

Lynch J.

Appeal from an order of the Family Court of Tompkins County (Cassidy, J.), entered January 13, 2021, which, in a proceeding pursuant to Family Ct Act article 8, granted respondent's motion to dismiss the petition.

At the time this proceeding was commenced, petitioner (hereinafter the wife) and respondent (hereinafter the husband) were married with an adult child. In August 2020, the husband commenced a divorce proceeding against the wife. A few weeks later, the wife, then self-represented, commenced the instant Family Ct Act article 8 proceeding against the husband alleging that he had committed family offenses against her including identity theft and stalking. In her written submission annexed to the petition, the wife also alleged that the husband engaged in behavior that, if sufficiently established, would constitute sexual misconduct. The wife was subsequently assigned counsel and the husband moved to dismiss the petition for failure to state a cause of action (see CPLR 3211 [a] [7]). Family Court granted the motion, finding that the wife's allegations were "based on conjecture," the sexual misconduct claim was not sufficiently pleaded and, in any event, it was premised upon events that occurred 10 to 12 years prior. The wife appeals.

Family Court has jurisdiction to adjudicate family offense petitions concerning acts that constitute certain violations of the Penal Law (see Family Ct Act § 812 [1]), including, as relevant here, identity theft, stalking and sexual misconduct. As family offense proceedings are civil in nature, the Civil Practice Law and Rules governing motions to dismiss for failure to state a cause of action apply (see Family Ct Act § 812 [2] [b]; Matter of Pamela N. v Neil N., 93 A.D.3d 1107, 1108 [2012]). When analyzing a motion under CPLR 3211 (a) (7), "'[w]e accept the facts as alleged in the [petition] as true, accord [the petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable theory'" (Matter of Pamela N. v Neil N., 93 A.D.3d at 1108, quoting Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; see Matter of Walter Q. v Stephanie R., 201 A.D.3d 1142, 1144 [2022]). The criterion is "'whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one'" (Matter of Pamela N. v Neil N., 93 A.D.3d at 1108, quoting Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).

In dismissing the wife's petition, Family Court found that "[m]ost of the allegations... [we]re based on conjecture." We agree with this finding as it pertains to the stalking and identity theft charges, the two charges expressly checked in the boxes on the petition. As relevant here, stalking in the fourth degree - a family offense under Family Ct Act § 812 (1) - requires proof that a person "intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct... is likely to cause reasonable fear of material harm to the physical health, safety or property of such person ... or causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person... and the actor was previously clearly informed to cease that conduct" (Penal Law § 120.45 [1], [2]).

During an appearance on the wife's petition in September 2020, before she was assigned counsel, she gave sworn testimony to Family Court that, in August 2019, after the husband had moved out of the residence, he told her that he had "eyes everywhere. And then he told [her] days and what cars and how long they were parked in [her] driveway [and] [h]e wanted to know when [she] left, how come [she] was gone overnight." The wife further asserted in a September 18, 2020 attachment to the petition that the husband had access to a key-making machine and that his "brother-in-law used to be a licensed locksmith with a lock picking set that [the husband] could gain access to." She recounted a situation the prior October when she cleaned her bedroom, took "everything off [her] headboard" and left the house. However, when she returned, her missing baptismal record was allegedly "sitting in the middle of [her] headboard." The wife further alleged that objects in her house would move from how she placed them and, "just within the last three week[s]," movies and sewing supplies were taken from her residence. The wife also alleged that, the week prior, she found her front door key in her recycling bin even though she had not placed it there. She stated that she "think[s]" the husband and his girlfriend were to blame in this respect. The wife also alleged that there were often strange cars at her house and "mysterious noises," emphasizing that she was "afraid all the time" and believed the husband was stalking her.

We agree...