IN RE: JEFFREY O. (2026)

OPINION AND ORDER

Appeal from an order of the Family Court of Cortland County (Julie Campbell, J.), entered October 10, 2024, which, in a proceeding pursuant to Family Ct Act article 8, dismissed the petition.

The parties are familiar to this Court, having been the subject of a significant number of prior appeals (Matter of Jeffrey O. v. Casey Q., 250 AD3d 1382 [3d Dept 2026];  Matter of Jeffrey O. v. Casey Q., 250 AD3d 1385 [3d Dept 2026];  Matter of Jeffrey O. v. Casey Q., 250 AD3d 1383 [3d Dept 2026];  Matter of Casey Q. v. Jeffrey O., 244 AD3d 1519 [3d Dept 2025];  Matter of Casey Q. v. Jeffrey O., 237 AD3d 1270 [3d Dept 2025] ).  Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of one child (born in 2017).  Relevant here, in June 2024, Family Court issued cross-orders of protection in each party's favor, purportedly on the parties' consent (Matter of Casey Q. v. Jeffrey O., 244 AD3d at 1521).  This Court vacated the order of protection issued in the mother's favor on the basis that the father never actually consented thereto;  however, the order of protection in the father's favor, effective until June 2026, was left undisturbed (id. at 1522).  That order mandates that the mother stay away from the father, with the exception of custody exchanges or attending events relating to the child;  refrain from communicating with the father other than through a designated parenting app;  and refrain from, among other things, assaulting, stalking and harassing the father.

In October 2024, prior to this Court's vacatur of the mother's order of protection against the father, the father – acting in a self-represented capacity – filed a petition pursuant to Family Ct Act article 8, alleging that the mother violated the terms of the order of protection by, among other things, utilizing forms of communication other than the designated parenting app to contact the father, parking in the wrong location during a custody exchange and alienating the child from the father.  Family Court sua sponte dismissed the father's petition as “facially insufficient,” finding that – apart from his allegation that the mother was using communication methods outside of the designated parenting app – the father's remaining allegations did not allege violations of the order of protection.  The court also noted that the allegation regarding communications was duplicative of one pleaded in a prior violation petition filed by the father, which is still pending at the time of this writing.  The father appeals.¹

Contrary to the contention of the attorney for the child, the sua sponte dismissal of the petition is appealable.  Pursuant to Family Ct Act § 1112(a), “[a]n appeal may be taken as of right from any order of disposition under the Family Ct Act, which includes an order issued sua sponte that dismisses a petition in its entirety” (Matter of Jeffrey O. v. Casey Q., 250 AD3d at 1384 [internal quotation marks and citation omitted];  see Matter of Jeffrey O. v. Casey Q., 250 AD3d at 1383;  Matter of Rigdon v. Close, 200 AD3d 1562, 1562 [4th Dept 2021];  but see Matter of Casey Q. v. Jeffrey O., 244 AD3d at 1521;  Matter of Joycelyn E. v. Julianne R., 234 AD3d 477, 478 [1st Dept 2025];  Matter of Kelley v. Fifield, 159 AD3d 1612, 1612 [4th Dept 2018] ).  To the extent that this Court's prior cases, specifically Matter of Casey Q. v. Jeffrey O. (244 AD3d at 1521) and Matter of Donald QQ. v. Stephanie RR. (198 AD3d 1155, 1156 n 1 [3d Dept 2021] ), can be read as holding that an ex parte or sua sponte Family Court dispositional order is not appealable as of right, they should not be followed.  Indeed, the decisive issue when determining whether a Family Court order is appealable as of right is whether the order is dispositional (see Family Ct Act § 1112[a] ).  Moreover, because Family Ct Act § 1112(a) specifically addresses appealability of Family Court orders, it is improper to resort to CPLR provisions addressing appealability by way of Family Ct Act §§ 165 and/or 1118 (compare Sholes v. Meagher, 100 N.Y.2d 333, 335 [2003] ).

As to the merits, the father contends that Family Court abused its discretion in sua sponte dismissing the petition.  “The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, and that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent” (Matter of Marisol Y. v. Steven Z., 248 AD3d 1482, 1484 [3d Dept 2026] [internal quotation marks and citations omitted];  accord Matter of Carl KK. v. Michelle JJ., 175 AD3d 1627, 1628 [3d Dept 2019] ).  “Dismissal without a hearing is warranted when the petition fails to set forth sufficient facts that, if established at a hearing, would provide a basis for granting the relief sought” (Matter of Marisol Y. v. Steven Z., 248 AD3d at 1484 [citation omitted];  see Matter of Devlin v. Eriksson, 247 AD3d 890, 891 [2d Dept 2026] ).

Here, that aspect of the petition seeking vacatur of the June 2024 order of protection issued in the mother's favor has been rendered moot, as the father already obtained such relief in a recent appeal, and the mootness exception does not apply (see Matter of Casey Q. v. Jeffrey O., 244 AD3d at 1522;  see generally Matter of Joshua J. [Tameka J.], 44 NY3d 394, 401 [2025];  Matter of Staropoli v. Botsford, 183 AD3d 1064, 1065 [3d Dept 2020] ).  Regarding the father's allegations that the mother violated the order of protection against her by engaging in various conduct, Family Court correctly determined that, with the exception of the allegation regarding the mother's use of impermissible forms of communications to contact the father, the allegations set forth by the father, even if true, would not constitute violations of the order of protection (see Matter of Marisol Y. v. Steven Z., 248 AD3d at 1484–1485;  Matter of Devlin v. Eriksson, 247 AD3d at 891).  As to the allegation that the mother violated the order by protection by contacting the father outside of the permissible application, this allegation is duplicative of ones set forth in the father's prior pleadings, which he has had the opportunity to litigate (see Matter of Brian W. v. Mary X., 200 AD3d 1439, 1441–1442 [3d Dept 2021] ).  To that end, it bears emphasizing that this petition is but one of many that the father has filed within a relatively short period of time, and – despite being repeatedly advised by Family Court as to how he might properly present his various allegations for review on the merits – the father has seemingly disregarded such instructions from the court and continues to file pleadings with duplicative, and often frivolous, allegations.  In view of the foregoing, the court did not err in sua sponte dismissing the petition (see Matter of King v. King, 251 AD3d 1354, 1356 [3d Dept 2026];  Matter of Scott v. Powell, 146 AD3d 964, 965–966 [2d Dept 2017] ).

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The mother has not appeared on this appeal.

Pritzker, J.

Garry, P.J., Aarons, McShan and Mackey, JJ., concur.