DECISION AND ORDERKW, Respondent herein, moves by Order to Show Cause, dated December 3, 2018, seeking Order a) dismissing the Petitioner’s Family Offense Petition and Amended Family Offense Petition in their entirety; and b) vacating the Temporary Order of Protection, dated November 20, 2018 under Docket Number O-09761-18 forthwith.BACKGROUNDThe Petitioner, RW (hereinafter, the “Petitioner”) and the Respondent, KW (hereinafter, the “Respondent”) were married August 20, 1995, and there are three children born of the parties’ marriage, to wit: AW, born June 22, 19XX; DW, born September 29, 20XX; and MW, born December 10, 20XX. The parties’ marriage was subsequently dissolved pursuant to a Judgment of Divorce signed by Hon. Sondra K. Pardes, J.S.C. August 12, 2013, and entered by the Nassau County Clerk on August 14, 2013 (hereinafter referred to as the “Judgment”). The Judgment incorporated, but did not merge with the parties’ Stipulation of Settlement (hereinafter the “Stipulation of Settlement”).On November 8, 2018, the Petitioner filed a Family Offense Petition (hereinafter, the “Petition”), dated November 8, 2018, Docket Number O-09761-18, against the Respondent, wherein he alleged that the Respondent committed acts which would constitute the family offenses of: harassment in the first or second degree, disorderly conduct, menacing in the second or third degree, reckless endangerment, and criminal mischief. Upon the initial review of the Petition, Hon. Robin M. Kent, J.F.C. issued an ex parte Temporary Order of Protection, which ordered that the Respondent stay away from the Petitioner and JF1, the home of the Petitioner at 1 XXX, Roslyn, New York, refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with JF and the Petitioner, and to refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against JF and the Petitioner.Thereafter, on November 19, 2018, the Petitioner filed an Amended Family Offense Petition (hereinafter, the “Amended Petition”), which alleges that the Respondent committed acts which would constitute the family offenses of: disorderly conduct, harassment in the first or second degree, criminal mischief, menacing in the second or third degree, reckless endangerment, stalking in the fourth, third, second, and first degree, identity theft in the first, second or third degree and coercion in the second degree, and Respondent further seeks an Order of Protection in favor of himself, the parties’ three children, his current wife and his stepdaughter.On November 20, 2018, the matter was heard before Hon. Tammy S. Robbins, A.J.F.C. On that date, the Petitioner appeared with counsel, Jason Barbara, Esq., the Respondent appeared without counsel, and Robin Stanco, Esq. was appointed to represent the following children only: JF, born September 28, 20XX; and MW, born December 10, 20XX. Judge Robbins further ordered that the Nassau County Department of Social Services conduct an investigation of the matter pursuant to Family Court Act §1034 and provide the Court with a report of the investigation. Judge Robbins also modified the Temporary Order of Protection, such that the Respondent was directed to: stay away from the Petitioner’s home at 1 XXX, Roslyn, New York 11576, except for curbside pick up and drop off of the Child, MW; to refrain from communication or any other contact by mail, telephone, e-mail, voice-mail, or other electronic or any other means with RW except via e-mail and text with regard to visitation and issues regarding the Child, MW; and to refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against JF, MW, RW and CW. The matter was then adjourned to December 4, 2018 for further proceedings.On December 3, 2018, the Respondent filed the instant motion by Order to Show Cause, which was made returnable before this Court on December 10, 2018. On December 10, 2018, the parties appeared before this Court for conference on which date this Court set a briefing schedule for the submission of papers.In support of her application to dismiss, Respondent alleges that since the Temporary Order of Protection was issued, the Petitioner has “repetitively attempted to stage a violation of that Order…” and has informed the parties’ minor child of not only the existence of the Temporary Order of Protection but of other details regarding the family offense and custody proceedings. Her allegations are, in sum an substance, that the Petitioner has been using the Temporary Order of Protection in an improper and prejudicial manner by calling and threatening to call the police on her. She argues that based upon his actions, as alleged in her moving Affidavit, the Petitioner is not in fear of his safety and is abusing the legal system with the Temporary Order of Protection insofar as he is using it to harass her rather than to protect himself. It is her position that the Amended Petition rests upon uncorroborated allegations and allegations of conduct from 2008, 2010, and 2013. She further argues that the Petitioner knowingly violates the parties’ Stipulation of Settlement.Respondent’s counsel argues that the Petitioner is not in fear of his safety and that he is using the Temporary Order of Protection to intimidate the Respondent and manipulate the child against his mother. Counsel refers to an alleged incident wherein the Petitioner “summoned the police during a time when he was not present and claiming that any correspondence from Respondent, regarding their son, is tantamount to harassment.” Counsel further argues that the Petitioner’s “admissions” prove that the Respondent’s motivation in commencing these proceedings and seeking to obtain a Temporary Order of Protection “is solely to gain an advantage.” Counsel has not specified in what arena or with respect to what the Petitioner stands to gain an advantage and it is not this Court’s practice to make assumptions. Counsel further contends that in this matter, based upon the uncorroborated allegations of the Petitioner which can be proven as untrue, there is little likelihood of success on the merits. Counsel further contends that there will be no irreparable harm to the Petitioner in vacating the Temporary Order of Protection, with a matter pending, as Petitioner can file again. Lastly, counsel argues that “Petitioner’s own e-mails prove that he is not in fear for his own, his wife’s or his step-daughter’s safety.”Petitioner vehemently opposes the Respondent’s motion, and sets forth a number of allegations relating to purported incidents involving the Respondent, which this Court will not include herein in any specific detail as they are not relevant or dispositive with respect to the decision on the instant application. It is the Petitioner’s contention that there are no grounds, whether in law or fact, set forth by the Respondent to warrant vacating the Temporary Order of Protection or dismissing the Amended Petition.Petitioner’s counsel argues that the Respondent’s motion “all but ignores the grounds upon which the subject TOP was ordered in the first instance [and] [i]nstead, she cites and relies upon the Respondent’s [sic] potential “abuse” of the TOP to have her arrested, as the sole grounds for her motion to vacate.” With respect to the older allegations, counsel states that they were included in the Amended Petition to “present a historic pattern of conduct…” Counsel further argues that Respondent’s affidavit complains of visitation issues that occurred after the issuance of the Temporary Order of Protection. Counsel further goes into the substance of each cause of action.In reply to the Petitioner’s opposition, Respondent argues that “the Petitioner does not deny using the Temporary Order of Protection to engage in manipulation tactics and vengeful motives…” She further contends that the Petitioner has failed to dispute any of her allegations “that he is not in fear and does not need a Temporary Order of Protection.” She further argues that Petitioner, in his affidavit, is attempting to “amend his Amended [Petition] with new (albeit uncorroborated) allegations.” Counsel further argues that “the balancing of the equities weigh heavily in favor [of the] Respondent as the prejudice same has already proven to cause outweighs any benefit to the Petitioner.” Lastly, Counsel argues, citing Family Court Act §828, that it is incumbent upon this Court to consider “whether the temporary order of protection is likely to achieve its purpose in the absence of condition…”DECISIONS AND ORDERAs a preliminary matter, the Court notes that the Amended Family Offense Petition supercedes the Petition, and therefore that portion of branch “a” of the Respondent’s Motion seeking an order dismissing the Petition is DENIED as academic.It is indeed well-settled in the Second Department that “[w]hile public policy generally mandates free access to the courts, a party may forfeit that right by abusing the judicial process, and equity may enjoin such conduct (Taub v. Taub, 94 A.D.3d 901, 902, 942 N.Y.S.2d 145 [2012], citing Matter of Reiss v. Giraldo, 77 A.D.3d 759 [2010]; Matter of Simpson v. Ptaszynska, 41 A.D.3d 607 [2007]; Sassower v. Signorelli, 99 A.D.2d 358 [1984]). However, here the Respondent has failed to set forth a sufficient basis, upon undisputed facts, to demonstrate to this Court that the Petitioner abused the judicial process so as to warrant dismissing the Amended Petition. Moreover, Respondent’s counsel has not provided this Court with any legal authority to support the contention that “abuse of judicial process” is a legally cognizable basis upon which this Court can rely to dismiss a family offense petition. Furthermore, the alleged abuse of judicial process that the Respondent refers to in her Affidavit is based upon Petitioner’s actions after the issuance of the Temporary Order of Protection. The underlying allegations which served as the basis for the issuance of the ex parte Temporary Order of Protection are in dispute and therefore this Court must set the matter down for a fact-finding hearing. The addition of any new allegations, as Respondent argues, is not relevant as the hearing will be to adjudicate the allegations contained in the Amended Petition only. The Temporary Order of Protection is based upon the allegations contained in the Amended Petition, and therefore, the hearing is limited exclusively to those allegations which are contained in said Amended Petition (see Czop v. Czop, 21 A.D.3d 958, 959 [2005]).Next, Respondent’s counsel relies upon that portion of the Kings County Family Court’s decision in Matter of Ardis S. v. Sanford S., 88 Misc. 2d 724 (Fam. Ct. Kings Co., 1976), which states that “it is incumbent upon the individual practitioner to use these [Family Court] proceedings where necessary rather than as a wedge to gain advantage…” That case, however, is not only not binding upon this Court, but is also intended to be “[o]ne final word of caution… to the bar.” Truly, it can not even be considered dicta as it is simply that particular judge’s advice to the matrimonial bar in general regarding certain strategies employed by such attorneys, which he has characterized as their “modus operandi” (Id. at 724), and which practices, in his opinion, may serve to negatively impact the credibility of the Bar.Since the Respondent’s motion to dismiss is based solely upon the unrecognized legal theory that the Petitioner’s Amended Petition is an abuse of process, and no other legal basis for the dismissal is stated, the Court need not analyze each cause of action. The factual allegations contained in the Amended Petition are in dispute and accordingly the Court must conduct a hearing in order to make findings of fact upon which to make final conclusions of law. Therefore, that portion of branch “a” of Respondent’s motion seeking dismissal of the Amended Family Offense Petition is DENIED. Branch “b” of Respondent’s motion is a fortiori DENIED.Accordingly, and based upon the foregoing, it is herebyORDERED that Respondent’s motion is DENIED IN ITS ENTIRETY, and it is furtherORDERED that the parties, their respective counsel, and the Attorney for the Children shall appear before this Court on March 20, 2019 at 11:00 a.m. for a conference during which conference the Court shall assign a hearing date for this matter, which date shall not be adjourned without the express consent of this Court, and upon consent of all parties and counsel.This constitutes the Decision and Order of this Court.PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.ENTER:Dated:Check applicable box:Order mailed on [specify date(s) and to whom mailed:Order received in court on [specify date(s) and to whom given]
