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Decided on December 5, 2011
Family Court, Kings County

O-XX
Patricia Martin-Gibbons, Esq., for the Petitioner 26 Court Street, Suite 2410 Brooklyn, New York 11242 Brian J. Zimmerman, Esq., for the Respondent 44 Court Street, Suite 905 Brooklyn, New York 11201 Martha Pollack, Esq., for the Child
The Children's Law Center
44 Court Street, 11th Floor
Brooklyn, New York 11201
Paula J. Hepner, J.
Before the Court is a motion made in limine for a ruling on the admissibility of testimony regarding prior incidents that occurred on April 3, 2006 and March 28, 2007. Petitioner is before the Court on her third family offense proceeding which she filed against the Respondent on January 14, 2009. This petition described "the most recent incident" as occurring on December 28, 2008 and "the most serious incident" as occurring on April 3, 2006.[FN1] Two prior family [*2]offense petitions had been filed in New York County Family Court, one on April 24, 2006,[FN2] and one on February 14, 2008.[FN3] Trial began on February 28, 2011 with the Petitioner' testimony. During direct examination, counsel elicited testimony from the Petitioner regarding incidents occurring from December 18, 1996 to February 3, 2010, and the three specific incidents in her petition: April 3, 2006, November 18, 2008 and December 28, 2008. Counsel for the Respondent objected to questions about the April 3, 2006 incident on the grounds that it was settled in Manhattan Family Court on a prior filing under Docket # O-2278/08. Counsel was directed to requisition the files from New York County to determine what the allegations were and how they were settled.
This issue arose again on June 16, 2011 when Petitioner's counsel attempted to return her client's attention to the events of April 3, 2006. Because Respondent's counsel had not obtained any certified records from New York County and had not filed a Bill of Particulars to clarify what other incidents were being claimed in the interval between "the most serious incident" and the "most recent incident." Although the Petitioner conceded that the issues were resolved in the prior case, her attorney argued these events were admissible in this matter "to show that it causes possibly my client to experience certain emotions," and the objection was overruled on this basis. [*3]
As the direct of the Petitioner proceeded, her attorney inquired about other prior incidents and, in the absence of a Bill of Particulars to narrow the testimony, the Petitioner was permitted to testify about a prior incident in March 2007. Respondent's counsel again objected on the same grounds, that it was an allegation in a prior petition in Manhattan that was resolved. Still without any documentation to support the basis for the Respondent's objection, and Petitioner's counsel continued to argue that the testimony was admissible to explain "any fear or upset that she may experience as a result of [the Respondent's] actions," the objection was again overruled. Respondent's counsel continued to object to any questions pertaining to the incident of March 2007 on the grounds that the matter was settled in the prior Manhattan case and the Court again advised counsel to secure the transcript.
When the case continued on June 30, 2011, Respondent's counsel had not requisitioned the files from Manhattan. On cross-examination and without objection, he showed the Petitioner a copy of a "certificate of record" for the 2008 family offense petition and inquired if the matter was settled. The Petitioner refuted that assertion saying that the matter was not settled, that she had an order of protection, but agreed there was no trial.
Although the trial could not continue on the next adjourned date of July 5, 2011, counsel gave oral arguments about the legal issues pertaining to the prior family offense petitions filed in New York County, specifically Respondent's contention that testimony about them is precluded by the doctrine of res judicata and Petitioner's contention that the testimony is admissible as "prior bad acts" and establishes a course of conduct by the Respondent which explains Petitioner's state of mind in later incidents. At the conclusion of the oral argument, copies of the Manhattan files were requisitioned by the Court in order to determine how to rule on Respondent's objections to the admissibility of testimony concerning the incidents of March 2007 and April 2006 and to determine what latitude to give Respondent's counsel in framing questions about the disposition of the prior cases.
The two prior petitions filed in Manhattan Family Court contained allegations regarding an incident on April 3, 2006. The second petition also contained an allegation about March 22, 2007. The first petition under Docket #O-5234/06 was settled on June 26, 2007 with the Respondent consenting to an order of protection without admission of wrongdoing and a suspended judgment for a period of six months. The second petition under Docket #O-02278/08 was withdrawn on March 27, 2008 evidently without prejudice as the endorsement does not reflect otherwise and no order was in the file. No motion was made to dismiss the April 3, 2006 allegation when the second petition was filed.
At the time this proceeding was filed in 2009, Article VIII of the Family Court Act did not contain a time period within which a proceeding for an order of protection must be instituted. In accordance with Section 165 of the Family Court Act, trial courts turned to CPLR 213(1) that allows an action "for which there is no limitation specifically prescribed by law" to be commenced within six years. This time frame was shortened by the appellate courts that addressed the question of how old allegations in a family offense petition may be and survive dismissal. The standard established in the First and Second Departments required the events to be "relatively contemporaneous" if they are to support the finding of a family offense and the need for an immediate order of protection (Matter of Ashley P., 31 AD3d 767, 769 [2d Dept 2006]; Swersky v Swersky, 299 AD2d 540 [2d Dept 2002]; Yoba v Yoba, 183 AD2d 418 [1st Dept. [*4]1992]). This line of cases was overruled in August 2010 when the New York Legislature amended Family Court Act

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