Smith v. Howard

Jan 22, 2014
Versions:113 A.D.3d 781
978 N.Y.2d 856

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 NY2d 249, 256 n 3 [1967]; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907 [2013]; Matter of Brittany C. [Linda C.], 67 AD3d 788 [2009]; Tun v Aw, 10 AD3d 651, 651-652 [2004]), 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 AD3d 823 [2012]; Matter of Duane S., Jr. [Duane S.], 88 AD3d 727 [2011]; Matter of Paulino v Camacho, 36 AD3d at 822).

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 NY3d 475, 484 [2009]; Matter of Pamela N. v Neil N., 93 AD3d 1107, 1108-1109 [2012]). 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 AD3d 870 [2012]; Matter of Jeff M. v Christine N., 101 AD3d 1426, 1427 [2012]; Matter of Gil v Gil, 55 AD3d 1024 [2008]).

The remaining contentions are without merit. Austin, J.P., Sgroi, Cohen and Hinds-Radix, JJ., concur.