CAG v. JCG (2026)

The following papers were read on this motion:

Notice of motion to dismiss (respondent) X

Affirmation in opposition (petitioner) X

Reply affirmation of motion to dismiss (respondent) X

On March 13th petitioner CAG ("petitioner") commenced this family offense proceeding by filing a petition alleging that her adult son JCG ("respondent") committed the family offenses of harassment and menacing by sending a continues series of text messages to her. On that same date the court issued an ex parte temporary order of protection directing respondent, inter alia, to stay away from petitioner and her residence, refrain from communication, and surrender any firearms to the appropriate law enforcement agency.

On March 18, 2026, respondent, who resides in the State of Florida, was personally served with the summons, petition, and temporary order of protection. The summons directed respondent to appear before this court on April 6, 2026.

On April 6, 2026, petitioner appeared with counsel, and counsel for respondent also appeared. Respondent did not personally appear. Respondent's counsel appeared solely for the limited purpose of contesting personal jurisdiction. The matter was adjourned to May 11, 2026.

On May 11, 2026, respondent again failed to appear. Respondent, through counsel, moved to dismiss the petition pursuant to CPLR § 3211(a)(8), asserting that the court lacks personal jurisdiction due to defective service. Specifically, respondent contends that service was effectuated nineteen days prior to the return date rather than the twenty days required for out-of-state service pursuant to Family Court Act § 154. Respondent additionally seeks dismissal pursuant to Family Court Act § 821 on the ground that the petition fails to allege a family offense.

Petitioner opposes the motion, asserting that service was properly effectuated by the Seminole County Sheriff's Office in Florida and that respondent suffered no prejudice as a result of the one-day discrepancy. Respondent thereafter submitted a reply maintaining that the statutory twenty-day requirement must be strictly enforced.

Pursuant to CPLR § 3211(a)(8), a party may move to dismiss a proceeding on the ground that the court lacks personal jurisdiction. Family Court Act § 154(c) provides that, in proceedings under Article 8 involving orders of protection, the court may direct service of process outside the State of New York in the same manner and with the same effect as service made within the state. New York courts may exercise personal jurisdiction over a nonresident respondent where the alleged conduct giving rise to the petition occurred within New York and the petitioner resides or is domiciled in this state. Family Court Act § 153-b further provides that a summons, petition, and temporary order of protection may be served on any day of the week and at any hour.

Family Court Act § 154 requires that service upon a nonresident or nondomiciliary respondent should be made at least twenty days before the return date. Where an out-of-state respondent defaults by failing to appear, the court may, on its own motion or upon application of a party or the attorney for the child, proceed to a hearing with respect to the issuance or enforcement of an order of protection. Nothing in the statute shall be construed to affect or alter the exercise of personal jurisdiction with respect to issues other than the order of protection.

This court finds that the twenty-day notice requirement is intended to ensure due process by providing an out-of-state respondent with adequate notice and a meaningful opportunity to be heard. Accordingly, dismissal is not warranted where any defect in the timing of service has been cured by an adjournment of the return date to a date more than twenty days after service was effectuated. Under such circumstances, respondent has received the notice and opportunity to be heard contemplated by the statute, and the court may disregard the irregularity in timing. See Barclay v. New York State Committee on Legislative & Executive Compensation, 65 Misc 3d 685, 692-93, 110 N.Y.S.3d 238 (Sup. Ct. Albany County 2019) (holding that service made eighteen days before the originally noticed return date did not warrant dismissal where the proceeding was adjourned to a date more than twenty days after service).

In his notice of appearance, on the record in court and in his motion, respondent's counsel repeatedly represents that respondent has not made a general appearance. Counsel expressly states that his notice of appearance is "expressly and exclusively for the purpose of contesting personal jurisdiction" and that "[r]espondent does not address or concede any matters going to the merits of the petition." (respondent's notice of motion, ¶ III.) Notwithstanding these representations, respondent also moves to dismiss the petition for facial insufficiency, seeks to vacate the temporary order of protection, including its firearm surrender provisions, and, alleges that this court failed to commence a hearing within fourteen days of the order of protection and that this court failed to make the appropriate statutory findings pursuant to Family Court Act § 842-a (7).

This court notes that respondent's positions are inconsistent. Respondent simultaneously maintains that he has appeared solely to contest personal jurisdiction while also requesting affirmative relief directed to the merits of the proceeding. Moreover, respondent has not been arraigned, and counsel has consistently represented both on the record and in his written submissions that his appearance is limited exclusively to challenging jurisdiction. Nevertheless, in the interest of judicial economy, the court addresses respondent's additional requests.

The petition alleges that respondent, petitioner's son, allegedly engaged in a course of conduct that included sending petitioner constant threatening text messages constituting the family offense. On a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must afford the petition a liberal construction, accept the allegations as true, and accord petitioner the benefit of every favorable inference. See Matter of Jones v. Jones, 149 AD3d 1079 (2d Dept. 2017); Matter of Smith v. Howard, 113 AD3d 781 (2d Dept. 2014). Applying this standard, the court finds that the petition sufficiently alleges a family offense within the meaning of Family Court Act § 812.

Respondent further seeks to vacate the firearm surrender provisions contained in the temporary order of protection, arguing that the court failed to commence a hearing within fourteen days after issuance of the order as required by Family Court Act § 842-a(7). That statute provides that a respondent has the right to a hearing regarding any revocation, suspension, ineligibility, surrender, or seizure order issued pursuant thereto, while expressly authorizing the court to issue such relief prior to the hearing. The statute further provides that where such relief is issued before a hearing, the hearing shall commence within fourteen days of the issuance of the order. Respondent's argument is unpersuasive. This court was ready, willing, and able to conduct the required hearing. However, respondent failed to appear before the court and has consistently declined to submit himself to the court's jurisdiction, rendering this court's ability to conduct a hearing impossible. Under these circumstances, respondent cannot rely upon his own failure to appear as a basis for vacating the firearm surrender provisions of the temporary order of protection.

Accordingly, respondent's motion is denied in its entirety.

Any contentions not specifically addressed herein are deemed without merit.

This matter is hereby adjourned to August 7, 2026 at 9:30 A.M. Respondent may appear virtually. This constitutes the Decision and Order of the 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 ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Dated: July 15, 2026

Mineola, NY

HON. ERIC P. MILGRIM. J.F.C.

Eric P. Milgrim, J.