                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   519316
________________________________

In the Matter of CHRISTINA Z.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

BISHME AA.,
                    Respondent.
________________________________


Calendar Date:   September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Bruce Evans Knoll, Albany, for appellant.

     Jeffrey S. Berkun, Albany, for respondent.

     Christopher Obstarczyk, Latham, attorney for the child.

                             __________


Clark, J.

      Appeal from an order of the Family Court of Albany County
(Kushner, J.), entered June 10, 2014, which, in a proceeding
pursuant to Family Ct Act article 8, granted respondent's motion
to dismiss the petition.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of a child
(born in 2004). The mother commenced the instant proceeding
against the father alleging that he committed the family offenses
of harassment in the first and second degrees and aggravated
harassment in the second degree by sending her several text
messages over the course of three days. After initially issuing
an ex parte temporary restraining order, Family Court granted the
father's oral motion to dismiss the amended petition for failure
                               -2-                519316

to state a cause of action.   The mother now appeals and we
reverse.

    In determining whether a petition sufficiently alleges an
enumerated family offense, 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 Craig O. v Barbara P., 118 AD3d 1068, 1070 [2014];
Matter of Jeff M. v Christine N., 101 AD3d 1426, 1427 [2012]).
As relevant herein, harassment in the first degree requires that
an individual "intentionally and repeatedly harasses another
person . . . by engaging in a course of conduct or by repeatedly
committing acts which places such person in reasonable fear of
physical injury" (Penal Law § 240.25). Harassment in the second
degree requires that, "with intent to harass, annoy or alarm
another person . . . [, an individual] engage[] in a course of
conduct or repeatedly commit[] acts which alarm or seriously
annoy such other person and which serve no legitimate purpose"
(Penal Law § 240.26 [3]).1

      Here, in her pro se petition, the mother alleged that, over
the course of three days in November 2013, the father sent her
multiple text messages in which he called her obscene names,
repeatedly stated that he hated her and wished ill will upon her,
and stated that he was going to "put a stop to [her]," among
other things. When the mother asked whether the father was
threatening her, he responded affirmatively. Additionally, the
mother indicated that, due to the parties' history of domestic
violence, she was fearful of what the father might do to her and
the child. Applying the aforementioned standard by liberally
construing the petition here and giving petitioner the benefit of


    1
        Family Court dismissed the portion of the petition
alleging that the father had committed the family offense of
aggravated harassment in the second degree, due to the fact that
the statute had been held unconstitutional in People v Golb (23
NY3d 455, 466-468 [2014]). Insofar as the mother does not raise
this issue on appeal, it is deemed abandoned (see Matter of Jodi
S. v Jason T., 85 AD3d 1239, 1241 n 2 [2011]; Matter of Eck v
Eck, 57 AD3d 1251, 1252 n 2 [2008]).
                              -3-                  519316

every favorable inference, the allegations contained therein are
sufficient to state a cause of action for a family offense based
on either harassment in the first degree and/or harassment in the
second degree. Accordingly, we find that Family Court erred in
granting the father's motion to dismiss.

     Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, motion denied and matter remitted to the Family Court of
Albany County for further proceedings not inconsistent with this
Court's decision and, pending such further proceedings, the
provisions of the temporary order of protection shall continue.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
